Arangasamy v. Valarmathy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :3.4.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.374 of 2007andM.P.No.1 of 2007Arangasamy ..Appellant/Plaintiffvs.1.Valarmathy2.Gunasekaran ..Respondents/DefendantsThis second appeal is filed against the judgement and decreedated 27.10.2006 passed in A.S.No.37 of 2006 by the Sub-Court,Nagapattinam, confirming the judgement and decree dated 12.4.2006passed by the District Munsif, Nagapattinam, in O.S.No.12 of 2003.For Appellant : Mr.V.K.RajagopalanFor Respondents : Mr.Srinath SridevanJUDGMENTThis second appeal is focussed by the plaintiff, animadvertingupon the judgement and decree dated 27.10.2006 passed in A.S.No.37 of2006 by the Sub-Court, Nagapattinam, confirming the judgement anddecree dated 12.4.2006 passed by the District Munsif, Nagapattinam,in O.S.No.12 of 2003, which was filed for mandatory injunction. 2. The appellant herein as plaintiff filed the suit O.S.No.12 of2003 seeking mandatory injunction to remove the construction put upby the defendants in the suit pathway and also to restrain thedefendants from interfering with the use of the pathway by theplaintiff on the main ground that ever since he acquired theproperty, to the East of the suit pathway, he has been using it foringress and egress to his property and that his predecessor in title,namely, his vendor also was using the same.3. Whereas the defendants entered appearance and resisted thesuit by filing written statement remonstrating and refuting theallegations in the plaint and also pointing out the rebarbative andantipathetical attitude, which the plaintiff was emitting towards the https://hcservices.ecourts.gov.in/hcservices/ defendants in their enjoying their own exclusive suit pathway, whichforms part of their own land, as per their title deeds. 4. The trial Court framed the relevant issues. During enquiry,the plaintiff examined himself as P.W.1 along with one Rengaiyan asP.W.2 and Kaliaperumal as P.W.3 and Exs.A1 to A9 were marked. On thedefendants' side the first defendant examined himself as D.W.1 andEx.B1 to B.4 were marked. Ex.C1 and Ex.C2 were marked as Courtdocuments.5. Ultimately, the trial Court dismissed the suit, as againstwhich, the plaintiff preferred the appeal A.S.No.37 of 2006, whichwas also dismissed by the first appellate Court, confirming the thejudgement and decree of the trial Court.6. Being disconcerted and aggrieved by the judgments and decreesof both the Courts below, the plaintiff preferred this second appealon various grounds and also suggesting the following substantialquestions of law:"a) Whether the non-consideration of Ex.C2(Plan) in whichAdvocate Commissioner mentioned that in the suit land 2 feetcome under appellants Survey No.96/8 and ¾ feet alone comeunder the respondents survey No.96/7 so dismissing the suitclaim by both the Courts below is valid in law?b) When the Advocate Commissioner appointed by the Courtclearly mentioned that in the suit lane out of 3 feet, 2feet come under appellants property. So non-decreeing thesuit is valid in law?c) When the claim of easementary right in the suit lane wasnegatived by both the courts below without considering saledeeds Ex.A1 and A2 and the Evidence of P.W.1 to 3 is legallycorrect?"7. Heard the learned counsel for both sides.8. The learned counsel for the plaintiff would reiterate thegrounds as found set out in the memorandum of second appeal.Whereas, the learned counsel for the defendants would appropriatelyand correctly put forth his argument to the effect that the trialCourt in its judgement pointed out that P.W.2- the vendor of theplaintiff admitted in unequivocal and unambiguous terms that hehimself was not using the suit pathway, but on the other hand he washaving ingress and egress to the property, which was sold by him tothe plaintiff, directly from the Road situated to the North of thesaid property. As such, the very admission of P.W.2-the vendor ofthe plaintiff proved fatal to the case of the plaintiff. https://hcservices.ecourts.gov.in/hcservices/

9. It is also in evidence that from the road situated to theNorth of the plaintiff's property, the plaintiff is having directlyingress and egress to his property and his vendor also was using thesame. However, certain shops have been built, abetting the saidNorthern side road and despite such construction of shops, theplaintiff has been some portion abetting the Northern side road forhaving ingress and egress to the back portion of his residentialarea. The plaintiff cannot artificially create obstacle for himselfand claim as of necessity to use the adjacent pathway, over whichapparently and axiomatically he is having no right.10. In order to acquire easement by prescription, as per Section15 of the Indian Easements Act, he should have proved before theCourt that he had been using it for 20 years. Section 15 isextracted hereunder for ready reference."15.Acquisition by prescription – Where the access anduse of light or air to and for any building have beenpeaceably enjoyed therewith, as an easement, withoutinterruption, and for twenty years,and where support from one person's land, or thingsaffixed thereto, has been peaceably received by anotherperson's land subjected to artificial pressure or by thingsaffixed thereto, as an easement, without interruption, andfor twenty years,and where a right of way or any other easement has beenpeaceably and openly enjoyed by any person claiming titlethereto, as an easement, and as of right, withoutinterruption, and for twenty years,the right to such access and use of light or air,support or other easement, shall be absolute.Each of the said period of twenty years shall be takento be a period ending within two years next before theinstitution of the suit wherein the claim to which suchperiod relates is contested."11. The very plaint averments would exemplify and convey asthough the plaintiff has been using the suit pathway only for 12years and there is no indication that for 20 long years his vendorand following him, the plaintiff has been using it. Both the Courtsbelow adverting to the factual circumstance, and both oral anddocumentary evidence, arrived at the finding of fact that over thesuit pathway, the plaintiff or his vendor had no right. Hence, Icould see no question of law much less substantial question tointerfere with the findings of both the Courts below. https://hcservices.ecourts.gov.in/hcservices/

12. In the memorandum of appeal, the suggested substantialquestions of law (a) and (b) are relating to Ex.C2-the AdvocateCommissioner's plain. I am at a loss to understand as to how theplaintiff could place reliance on the Commissioner's sketch when theevidence discussed supra is speaking against the claim of theplaintiff. The Commissioner's report and Sketch could be used onlyfor the limited purpose of highlighting the physical features andnothing more and the very attempt on the part of the plaintiff toseek support from Ex.C2 would show that he has resorted to waging alost ditch battle.13. Put simply, the suggested substantial question of law (c) isconcerned, it does not arise at all in view of the fact thatabsolutely there is no adequate pleadings to prove easement byprescription as per Section 15 of the Act and the plaintiff's standgot torpetoed by the admission of P.W.2- the plaintiff's vendor.Accordingly, I could see no merit in the second appeal and the sameis dismissed. No costs. Consequently, connected miscellaneouspetition is dismissed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1. The Sub-Court, Nagapattinam.2. The District Munsif, Nagapattinam.3. The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to Mr. Srinath Sridevan, Advocate. S.R.No.12543.+ 1 c.c. to Mr. V.K. Rajagopalan, Advocate. S.R.No.12140. S.A.No.374 of 2007SJ (CO)GSK 11.05.2009.