The Honourable Mr v. Pandurangan2. K.Jayaraman

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 19.7.2007Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.1476 of 1996N.Boraiah .. Appellant/Plaintiffvs.1. Pandurangan2. K.Jayaraman .. Respondents/Defendants The Second Appeal has been filed against the judgment anddecree, dated 23.4.1996, passed in A.S.No.52 of 1995, on the fileof the Subordinate Judge, Ootacamund, the Nilgiris District,confirming the judgment and decree, dated 30.11.1994, passed inO.S.No.515 of 1991, on the file of the District Munsif,Ootacamund, The Niligris District. For Appellant : Mr.S.K.Rakhunathan For Respondents : Mr.N.Anantharaju J U D G E M E N TThe Second Appeal has been filed against the judgment anddecree, dated 23.4.1996, passed in A.S.No.52 of 1995, on the fileof the Subordinate Court, at Ootacamund, The Nilgiris Districtconfirming the judgment and decree, dated 30.11.1994, passed inO.S.No.515 of 1991, on the file of the District Munsif Court atOotacamund, The Nilgiris District.2. The plaintiff in the suit O.S.No.515 of 1991, is theappellant in the present second appeal.The plaintiff had filedthe suit before the District Munsif Court at Ootacamund, TheNilgiris District, praying for the reliefs of declaration,mandatory injunction and for permanent injunction.3. The brief facts of the case, as stated by the plaintiff,are as follows: https://hcservices.ecourts.gov.in/hcservices/ The plaintiff is the owner of the building named as RelianceBuilding, measuring 0.18-6/16 acres in R.S.No.1752. The plaintiffhad demolished some of the buildings which had been there and hadconstructed the said building in the property. The easternboundary of the said property is the lands in R.S.Nos.1750/1 and1750/2. The Government had assigned the lands in 1750/2 to the Co-operative Printing Works. On the eastern portion of R.S.No.1750/1,the defendants are running a Petrol Bunk. In R.S.No.1752, therewas a passage about 20 feet in width which gives access to theplaintiff's house and land. The said passage has been marked as"ABCD" in the sketch annexed to the plaint filed in O.S.No.515 of1991. The plaintiff has been using the said passage for about 65years. The plaintiff has prescriptive rights over the passage.Since the persons having the Co-operative Press had attempted toblock the said passage, the plaintiff had filed a suit inO.S.No.54 of 1986, which had been dismissed. Therefore, theplaintiff had filed an appeal in A.S.No.28 of 1989, which ispending before the District Court, Ootacamund. Even though thedefendants have no right in the suit property, on 12.6.1991, theyhave constructed a foundation in the suit property. Since theplaintiff had gone to Australia, he came to know about the factsonly after his return. Thereafter, the plaintiff had filed thesuit in O.S.No.515 of 1991. 4. The averments made in the written statement filed by thesecond defendant, which had been adopted by the first defendant,are as follows:It has been stated that the suit is not maintainable in lawor on facts. The plaintiff's title in the suit property is denied.Since the plaintiff has not made his brothers as parties to thesuit, it is defective. The suit filed by the plaintiff against thesecond defendant had been dismissed. Since the Government hadleased the said land to Bharath Petroleum Corporation, the saidconcern is a necessary party to the suit. The claim of theplaintiff that he has prescriptive rights in the passage isimaginary. The plaintiff is not entitled to claim any right in thepassage belonging to the Government. The suit does not have anycause of action. The amount paid as Court Fee for the filing ofthe suit is incorrect. Therefore, the suit is to be dismissed. 5. Based on the averments made in the plaint as well as inthe written statement, the trial Court had framed the followingissues for consideration:- https://hcservices.ecourts.gov.in/hcservices/ "1. Whether the averment of the plaintiffthat the plaintiff and his tenants haveprescriptive rights over the suit pathway iscorrect?2. Whether the plaintiff is entitled tothe relief of mandatory injunction as prayedfor?3. Whether the plaintiff is entitled tothe relief of permanent injunction as prayedfor?4. What other reliefs the plaintiff isentitled to?"6. The additional issue was framed by the trial Court, on28.11.1994, which is as follows:"Whether the suit is barred by the non-joinder of necessary parties?"7. The trial Court, by its judgment and decree, dated30.11.1994, had dismissed the suit holding that the plaintiff isnot entitled to the reliefs prayed for in the suit. Even thoughthe plaintiff had claimed that he has prescriptive rights over thesuit passage, he could not prove that he had been using the suitpassage for more than 60 years as required by law. 8. The trial Court had also found that there is no disputeamongst the parties to the suit that R.S.Nos.1057/1 and 1057/2belonged to the Government. It is also not in dispute that thesuit passage over which the plaintiff claims prescriptive right ison the property belonging to the Government. While so, the burdenof proof is on the plaintiff to show that he and his men have beenusing the suit passage for over 60 years to establish their rightof using it by prescriptive right. The oral evidence let in onbehalf of the plaintiff does not substantiate the claim of theplaintiff that he and his men were using the passage continuouslyfor over 60 years. Further, there is no documentary evidence filedon behalf of the plaintiff to prove the same. 9. The trial Court had also found that the plaintiff hadfiled another suit in O.S.No.54 of 1986, with regard to the samepassage and had lost the suit. The plaintiff had also lost theappeal filed against the judgment and decree made in O.S.No.54 of1986. A second appeal filed against the judgment and decree passedby the Courts below is pending before this Court in S.A.No.755 of1994. Even according to the admissions of the plaintiff, he has analternate way to reach the building from his property, even thoughthe said pathway cannot be used by cars, lorries and other suchvehicles. https://hcservices.ecourts.gov.in/hcservices/

10. Further, according to the oral evidence of D.W.1, it hasbeen stated that the wall in question has been built in the year,1991, by the Bharath Petroleum Corporation and that he does notknow as to whether it was built with or without the permission ofthe Government or Municipality. However, the trial Court had foundthat it was unnecessary to go into the issue as to whether thewall was built with or without the permission of the concernedauthorities, since the plaintiff could not prove that he hadprescriptive rights to use the suit passage as claimed by him inthe suit in O.S.No.515 of 1991. 11. With regard to the additional issue framed by the trialCourt, it had been found that the suit filed by the plaintiff isbad in law for non-joinder of necessary parties, namely, theGovernment and Bharath Petroleum Corporation, since the propertyin Survey No.1750/1 in which the suit passage is situated belongsto the Government and the said property has been leased out toBharath Petroleum Corporation. 12. Aggrieved by the judgement and decree of the trial Court,dated 30.11.1994, made in O.S.No.515 of 1991, the plaintiff hadfiled an appeal in A.S.No.52 of 1995 on the file of theSubordinate Court at Ootacamund, The Nilgiris District.13. The lower appellate Court had framed the point forconsideration as to whether the appeal is to be allowed or not?14. The lower appellate Court had found that there is nodispute regarding the fact that the property in Survey No.1752 atOotacamund belongs to the plaintiff and that the Survey Nos.1750/1and 1750/2 belonged to the Government. The Survey No.1750/2 hadbeen allotted by the Government to the Co-operative printing pressand that the plaintiff had filed a suit with regard to the suitpassage in O.S.No.54 of 1986, before the District Munsif Court atOotacamund, The Nilgiris District and since the suit had beendismissed, the plaintiff had preferred an appeal in A.S.No.28 of1989, on the file of the District Court at Ootacamund, TheNilgiris District, which had also been dismissed. Thereafter, theplaintiff had preferred the appeal in S.A.No.755 of 1994, which ispending before the High Court of Judicature at Madras. Theplaintiff had admitted that the earlier suit filed by him inO.S.No.54 of 1986, also relates to the same suit property, as itis in O.S.No.515 of 1991, regarding which the present secondappeal had been filed in S.A.No.1476 of 1996. The lower appellateCourt had found that survey Nos.1750/1 and 1750/2 are jointproperties belonging to the Government. It had also been foundthat the land in Survey No.1750/1 had been given on lease toBharat Petroleum Corporation. https://hcservices.ecourts.gov.in/hcservices/

15. The Village Administrative Officer, who had been examinedas D.W.2, had stated in his evidence that there is no pathway insurvey No.1750/1. ABCD pathway shown in the sketch filed alongwith the plaint in the suit O.S.No.515 of 1991, shows that it isin survey No.1750/1. 16. In such circumstances, the Government is a necessaryparty to the suit and Bharath Petroleum Corporation, which is alessee in the said property, is also a necessary party to thesuit. The plaintiff has not stated any reason for not making theGovernment and Bharath Petroleum Corporation as parties to thesuit. However, the lower appellate Court had found that it issufficient, for the plaintiff to prove that he was in prescriptiveuse of the passage for 30 years or more to claim the reliefagainst the Government. 17. Therefore, the conclusion of the trial Court that theplaintiff had to prove that he had used the suit passage for morethan 60 years to claim prescriptive rights in the same isincorrect. The lower appellate Court had also found that there isno mention of the existence of the passage as claimed by theplaintiff in Survey No.1750/1. There is no mention in Exhibits B.1and B.2 about the existence of the passage in Survey No.1750/1 asclaimed by the plaintiff. D.W.2 had also stated in his evidencethat there is no pathway in Survey No.1750/1 according to ExhibitB.1.18. The lower appellate Court had, therefore, found that theclaim of the plaintiff that there is a pathway in Survey No.1750/1on which he got prescriptive rights is not sustainable. Further,since the plaintiff had filed the suit in O.S.No.54 of 1986,making a similar claim and having lost the same cannot get therelief as prayed for in the present suit in O.S.No.515 of 1991. 19. Being aggrieved by the judgment and decree of the lowerappellate Court, dated 23.4.1996, made in A.S.No.52 of 1995, theplaintiff had filed the present second appeal in S.A.No.1476 of1996. 20. This Court had admitted the second appeal on thefollowing substantial question of law:"On the facts and circumstances is not theplaintiff entitled to the decree on the basis ofprescription, the appellant using the Road-waycontinuously for over the statutory period?" https://hcservices.ecourts.gov.in/hcservices/

21. The appellant had raised various grounds in filing thesecond appeal before this Court contending, inter alia, that theCourts below had failed to note that the plaintiff and hispredecessor-in-interest having used the suit schedule pathway forover 65 years had acquired prescriptive title over the suitproperty. The Courts below had failed to note that the appellantis entitled to use the suit pathway, even though there may be analternate way to reach the plaintiff's property. Since theplaintiff had proved that there is no easy access to theplaintiff's property except through the suit pathway, the Courtsbelow ought to have accepted the claim of the plaintiff to use thesuit pathway by easement of necessity. 22. Having heard the learned counsels appearing on behalf ofthe parties concerned and on a perusal of the records available,this Court is of the considered view that the plaintiff has notshown or proved sufficient reasons to interfere with the findingsof the Courts below. 23. It is clear that the Courts below have come to the rightconclusion that the plaintiff has not proved his right to use thesuit pathway in S.F.No.1750/1 due to prescriptive rights, byshowing that he has been using the said pathway for more than therequired number of years. The Courts below have rightly held thatthe suit is bad in law for non-joinder of necessary parties,namely, the Government and Bharath Petroleum Corporation. 24. The Courts below have also taken into consideration thefact that the plaintiff had lost a similar claim made in O.S.No.54of 1986, on the file of the District Munsif Court, The NilgirisDistrict, at Ootacamund. In such circumstances, the judgment anddecree of the District Munsif Court, The Nilgiris District, atOotacamund, dated 30.11.1994, made in O.S.No.515 of 1991, asconfirmed by the judgment and decree of the Subordinate Court, TheNilgiris District at Ootacamund, dated 23.4.1996, made inA.S.No.52 of 1995, cannot be interfered with by this Court in thepresent second appeal. Hence, the second appeal stands dismissedconfirming the judgment and decree of the Courts below. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Subordinate Judge, Ootacamund,The Nilgiris District.2. The District Munsif, Ootacamund,The Nilgiris District.3. The Record Keeper,VR Section, High Court, Madras.+ 1 cc to Mr. Anantharaju, Advocate SR no. 44663S.A.No.1476 of 1996VSV(CO)SR/12.11.2007