High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 18-06-2007CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENSecond Appeal No.1439 of 19961.Marappa Gounder2.Lakshmi3.Sarasayammal.. Appellants. Versus1.Natarajan2.Rasammal.. Respondents.Appeal against the judgment and decree of the Court ofSubordinate Judge, Bhavani, in A.S.No.7 of 1996, dated26.03.1996, preferred against the judgment and decree of theCourt of the District Munsif, Bhavani, in O.S.No.82 of 1985,dated 31.01.1994.For Appellants : Mr.A.K.KumaraswamyFor Respondents : Mr.T.MurugamanickamJ U D G E M E N TThe Second appeal has been filed against the judgment anddecree of the Court of Subordinate Judge, Bhavani, dated26.03.1996, made in A.S.No.7 of 1996, reversing the judgment anddecree of the Court of the District Munsif, Bhavani, dated31.01.1994, made in O.S.No.82 of 1985.2. The appellants in the present second appeal were thedefendants 1, 4 and 5 in the suit. The plaintiffs had filed thesuit in O.S.No.82 of 1985, on the file of the Court of theDistrict Munsif, Bhavani, praying for a decree declaring thatthe suit cart track is specifically intended to be used only forthe purpose of reaching S.F.Nos.224, 225 and 226/A of Jambaivillage by the plaintiffs and the first defendant alone and forthe grant of permanent injunction, restraining the defendants,their men, assigns and heirs from in any manner using the suit https://hcservices.ecourts.gov.in/hcservices/ cart track pathway to reach their lands in the suit property,which had been acquired subsequently. 3. The brief facts of the case as stated by the plaintiffsare as follows:The first plaintiff is the father of the second plaintiff.The first plaintiff is the son of one Chinna Gounder and thefirst defendant is the son of one Muthu Gounder. Muthu Gounderand Chinna Gounder are brothers. When the joint familyproperties belonging to the Hindu Joint family consisting of theplaintiffs and the defendants were partitioned by a registereddeed, dated 12.12.1930, the suit cart track pathway, which is inthe northern part of S.F.No.226-A of Jambai Village, had beenleft in common for the specific purpose of reaching S.F.Nos.224,225 and 226/A. According to the plaintiffs the suit cart trackcannot be used to reach any other lands, excepting the landscovered under the partition deed, dated 12.12.1930. While theplaintiffs are reaching their respective lands through the suitcart track, the defendants are attempting to use the suit carttrack as a pathway to reach their lands acquired by themsubsequent to the partition deed, dated 12.12.1930, even thoughthey have no right to do so. Therefore, the plaintiffs wereconstrained to file the suit in O.S.No.82 of 1985, on the fileof the Court of the District Munsif, Bhavani.4. In the written statement filed by the first defendantfor himself and on behalf of the second defendant, it has beenstated that the plaintiffs have no cause of action to institutethe suit and that the suit is vexatious and frivolous and liableto be dismissed in limine. It has been stated that the seconddefendant is an unnecessary party to the suit, since she has notitle or interest in the suit property. Further, it is statedthat the suit cart track and the pathway rights have beenprovided in the sale deeds executed by the vendors of the suitproperties. Since the first defendant had purchased theadjoining portions of the properties, he has easementary rightsto use the cart track and pathway to reach the said lands. Sincethe suit cart track is a common cart track meant for the use ofboth the plaintiffs and the defendants, under the partitiondeed, dated 12.12.1930, the plaintiffs cannot have any validobjections against the use of the suit cart track pathway by thefirst defendant. 5. Based on the averments made on behalf of the plaintiffsand the defendants, the trial Court had framed the followingissues for consideration:i) Whether the plaintiffs are entitled to therelief of permanent injunction as prayed for in thesuit?ii) What other reliefs the plaintiffs are https://hcservices.ecourts.gov.in/hcservices/ entitled to?6. It has been contended on behalf of the plaintiffs thatthe cart track pathway was meant for the use of carts, cattleand persons connected to the plaintiffs and the defendants aloneand that it was clear that the said cart track was meant to beused by the defendants and their people, only to have access tothe portions of the properties, which had been allotted to themunder the partition deed, dated 12.12.1930. However, thedefendants had contended that the cart track described in Ex.A-6, dated 12.12.1930, was meant to be used by the defendants andothers to have access also to other properties belonging tothem. Accepting the contentions of the defendants, the trialCourt had dismissed the suit, holding that the suit cart trackpathway, as mentioned in Exhibit A-6, which is a partition deed,dated 12.12.1930, could be used both by the plaintiffs as wellas the defendants, in common and that it could also be used bythe defendants to have access to the lands other than those inS.Nos.224, 225 and 226-A. 7. Aggrieved by the judgment and decree of the trial Court,dated 31.01.1994, made in O.S.No.82 of 1985, the secondplaintiff had filed an appeal in A.S.No.7 of 1996, on the fileof the Sub Court, Bhavani.8. Based on the rival contentions and taking intoconsideration the evidence available on record, the lowerAppellate Court had framed the following points forconsideration:i) Whether the plaintiffs are entitled to therelief of permanent injunction as prayed for in thesuit?ii) Such other reliefs, the plaintiffs areentitled to?9.The lower Appellate Court had found that there was nodispute with regard to the fact that the suit cart trackpathway in question is lying in S.Nos.224, 225, 226/A. Itwas also not in dispute that the said cart track was to beenjoyed by both the plaintiffs and the defendants incommon. The lower Appellate Court had found that the suitcart track, as described in Ex.A-6, was intended to be usedby the defendants, only to have access to the properties,which had fallen to their share as per the partition deed.Therefore, the lower Appellate Court had held that thereliefs prayed for by the plaintiffs was to be granted.Therefore, the lower Appellate Court had reversed thefindings of the trial Court and had decreed the suit asprayed for, by its judgment and decree, dated 26.03.1996.10. https://hcservices.ecourts.gov.in/hcservices/

10. Aggrieved by the judgment and decree of the lowerAppellate Court, dated 26.03.1996, the present second appeal hasbeen preferred by the defendants 1, 4 and 5, who were therespondents 1, 3 and 4 in the first appeal before the lowerAppellate Court.11. The second appeal had been admitted on the followingsubstantial questions of law:1. Whether the interpretation placed on therecitals in Ex.A-6 partition deed by the lowerAppellate Court is legally sustainable?2. Whether the lower Appellate Court is justifiedin holding that the appellants are not entitled to usethe suit cart track to other survey fields exceptS.F.Nos.224, 225 and 226A, overlooking that theappellants are using the suit cart track to reachtheir shares in S.F.Nos.224, 225 and 226A andthereafter they go to other survey fields withouttouching the suit cart track?12. Based on the submissions made, the only point that hasarisen for consideration, is as to whether the appellants canuse the suit cart track marked in Ex.A-6, dated 12.12.1930, tohave access not only to S.Nos.224, 225 and 226/A, but also tohave access to other properties belonging to the appellants.13. In Subbiah Goundan Vs. Ramaswamy Goundan and others(AIR 1973 (Madras) 42 [V60 C12]), this Court, while deciding therights of the co-owners, under Section 18 of the Easement Act,1882, wherein the defendants wanted to use the common channelfor taking water to irrigate their fields from their exclusivelyowned well and the plaintiff sued for injunction to prevent thedefendants from making such use, had held thus:"Each of the co-owners of the common property isentitled to use the property in the way mostadvantageous and beneficial to him without at the sametime causing any injury or detriment to the other co-owners. It is not for the other co-owners to dictatein what manner the other co-owner should enjoy thecommon property so long as the user of the commonproperty by one co-owner does not materially interferewith the use of the property by the other co-owners oraffect their rights or in any way weakens, damage orinjure the common property. Therefore, when plaintiffneither alleged nor proved that by the use of the https://hcservices.ecourts.gov.in/hcservices/ common channel by the defendants to take water fromtheir exclusive well they were in any way prejudicedthe plaintiff was not entitled to prevent thedefendants from using the common channel in the waymost beneficial to them during their turn ofenjoyment." 14. In Krishnammal Vs. Periasamy (1997) 1 MLJ 309) thisCourt had quoted with approval the passage from Mitra's `JointProperty and Partition' – Tagore Law Lectures, Third Edition1991, at page 254, which is as follows:"It is not permissible for a co-owner of co-sharer to change the mode of user of a common passagewithout the consent of the other co-sharers. Asbetween the co-sharers of a common passage each hasthe right to lay underground drains. In such a casethere is no question of common passage being aservient tenement in respect off any of the promisesof the co-owners. Every co-owner has the right to makefull use of the common passage. Even though a co-ownerhas the right to lay a new underground drains in thecommon passage, but such laying of new drains shouldnot interfere with the existing drains and with theright of other co-owners of the passage. A person'sright to drain his own premises by laying undergroundpipes in his own land is an incident of legalownership and is not easement. The question oftenement arises when two tenements are involved, thedominant tenement which the right belongs and theservient tenement on which the obligation is imposed.Such a situation does not arise between co-owners ofcommon passage having right of drainage through it.When a right of drainage is given to the co-owners bydeed of partition to the erstwhile co-owners, it is aright to drain the house and premises specifiedtherein and is a joint right of drainage by theunderground process. Moreover, such right is notrestricted only to the building existing at the timeof partition and the co-sharers have got the right tolay new underground drain during the common passagefor the new buildings which may be erected on thepremises provided there is no restriction in the deedof partition against construction of a new building.So, it is, therefore, clear that when a common passagebelongs to both the plaintiff and the defendant, thereis no question of any one party having an easementright over the same. It is a joint property and anyco-owner has to use such property reasonably in thesense that his user does not amount to ouster of otherco-owners. No co-owner can complain that the use of https://hcservices.ecourts.gov.in/hcservices/ the common passage by the other causes an unnecessaryor additional burden upon the common passage. A co-owner carrying his carts, bullocks and ploughs throughthe joint property cannot be said to have causedunnecessary in convenience to the other co-owner". 15. In Basha Reddiar (died) and 4 others Vs. Janarthanamand 5 others (1998-3-L.W. 1977) this Court, while dealing withthe right of a co-owner to use the land to the maximum benefit,held as follows:"The finding of the Courts below that theplaintiff is not entitled to have the undergrounddrainage over the common pathway cannot be accepted.As a co-owner, he is entitled to make use of the landto the maximum benefit, subject to only one condition,i.e. his enjoyment should nto affect the right ofothers. To take an underground drainage connection isa irght of enjoyment by a co-owner and the other co-owners cannot injunct the plaintiff on the ground thathe interferes with their co-ownership rights. If sucha relief is granted, it will amount to negativing theright of the co-owner to enjoy his co-ownership right.By laying the underground pipeline, there is nointerference of the passage or their access to theirbuildings or their property, except for some minorinconvenience during the time of laying the pipeline.The defendants will not be put to any hardship orinjury to their co-ownership rights.""When it is admitted that the plaintiff as wellas the defendants are the joint-owners, the plaintiffcannot say that he is holding an easement right, inwhich he is claiming ownership also. The claim isinconsistent. The claim of the appellant that he hasgot an easement right to take the underground drainageis not correct. But, that by itself will not show thatthe appellant is not entitled to any relief. Over thepassage, the plaintiff and the defendants are theowners."16. Based on the above decisions, the learned counsel,Mr.A.K.Kumarasamy, appearing for the appellants, had contendedthat the suit cart track pathway is in S.Nos.226-A, which hadbeen allotted to the appellants according to the partitiondeed marked as Ex.A-6. In such circumstances, the plaintiffscould claim only an easementary right in the suit cart trackpathway. However, if the suit cart track pathway can be taken tobe a common cart track pathway to be used by the plaintiffs andthe defendants, in such a case, the plaintiffs cannot claimexclusive right of use of the said cart track pathway. It isfurther contended that the suit cart track pathway could be used https://hcservices.ecourts.gov.in/hcservices/ by the appellants not only to have access to the properties,which were available to them under the partition deed, dated12.12.1930, marked as Ex.A-6, but also to the other propertiespurchased by them subsequently. 17. The main contention raised by the learned counselMr.T.Murugamanickam, appearing on behalf of the respondents, isthat the wordings in Ex.A-6, dated 12.12.1930, had to beconstrued and interpreted using the principle of `ejusdemgeneris'. Accordingly, Ex.A-6 makes it clear that only those whohave been mentioned in the partition deed, dated 12.12.1930, andsuch similarly placed persons could use the suit cart trackpathway and that too only to have access to the survey numbersmentioned in the said document.18. Based on the contentions raised on behalf of theparties concerned and on analysing the records available beforethis Court, this Court is of the considered view that the suitcart track pathway is meant to be used according to thepartition deed, dated 12.12.1930, marked as Ex.A-6, by both theplaintiffs and the defendants in common. According to theprinciple laid down in the decisions relied on by the learnedcounsel appearing for the appellants, it is clear that the suitcart track pathway can be used in common by both the appellantsand the defendants and their men to their maximum beneficialuse, without causing any hindrance, or interference, orprejudice to the other users. Thus, the defendants also have theright to use the suit cart track pathway, not only to haveaccess to S.Nos.224, 225 and 226/A but also to the otherproperties purchased by them subsequently.19. In such circumstances, the judgment and decree of theSub Court, Bhavani, dated 26.03.1996, made in A.S.No.7 of 1996is set aside confirming the judgment and decree of the DistrictMunsif Court, Bhavani, made in O.S.No.82 of 1985. Accordingly,the second appeal stands allowed. No costs.CshSd/-Assistant Registrar/True Copy/ https://hcservices.ecourts.gov.in/hcservices/ To1.The Subordinate Jude, Bhavani2.The District Munsif court, Bhavani3.The Section Officer, VR Section, High court, Madras•one cc to Mr. A.K.Kumaraswamy, Advocate sr no. 35275•one cc to Mr. T. Murugamanickkam,Advocate sr no. 35133vrk(co)nm(30.07.07)Second Appeal No.1439 of 1996