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1974 Supreme(Mad) 301

IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. S. Venkataraman, J.
R. Sivanandan and others .....Appellant(s)
Versus
Rajammal and another .....Respondent(s)
S.A.No. 498 of 1973.
Decided On : 25 July 1974

Advocates:
Inamdar Abdus Salam, Inamdar Abdul Qu-yaam and A.S.Bibijohne, for Appellants.
G. Jagadisa Ayyar, for Respondents.

Provisions of Section 41 not applicable.

Headnote:Indian Easements Act, 1882-Section 41-Right of way-Grant by implication-Held, Section inapplicable to such easement.

       

Judgment.-The plaintiff is the appellant in this second appeal. The question for decision is whether in the lane marked V in the rough sketch. (Exhibit A-7) attached to the plaint, which belongs to the plaintiff, the defendants are entitled to a right of way. It is necessary to have an idea of the location of the properties as given in Exhibit A-7. There are five plots, designated by the letters I, II, III, IV and V in the sketch. Plot I is the westernmost plot and it abuts Kandasami Koil Street, which is west of Plot I and runs north to south. The north-south measurement of plot I is 30’, 90’

Plot II is just east of Plot I and it also measures 30’ north to south. Plot III ‘is just east of plot II, but its north-south measurement is only 22’ (the east-west measurement being 30’). Thus the western boundary of Plot III is only to a length of 22’ along the eastern boundary of plot II and that 22’ is counting from the northern point of the common boundary. Plot IV is just east of Plot III and the north-south measurement thereof is also 22’ (the east-west measurement being 60’). Just east of Plot IV there is a public street called Satchidanandam Street. Plot V is immediately south of Plots III and IV aforesaid. Its north south measurement is 8’; the east-west measurement is 30’+ 60=90’. In other words, the western boundary of Plot V is the southern portion of 8’ of the eastern boundary of Plot II and the northern boundary of Plot V is the southern boundary of Plots III and IV. The following is a rough sketch of the properties described above:

2. Originally all the five plots belonged to one Munuswami, having been allotted to him in a partition (Exhibit B-1) dated 25th April, 1927. On 1st May, 1973, (Exhibit B-2 is the registration copy) he sold the easternmost plot, i.e., Plot IV, to one Kanniah Naidu (60’ east to west and 22’ north to south). The southern boundary is described as the vacant site retained by Munswami.

3. On 7th February, 1935 (Exhibit B-3 is the registration copy) Munusami sold plot III to Raju Pillai and Subbaraya Pillai. This is the most vital document in the case and the relevant portion of the schedule thereto runs thus:

“On the western side of Nalpulam Street (another name for Satchidanandam Street) west of the land purchased by Kanniah Naidu (under Exhibit B-2) east of the house and site of Munusami Pillai (vendor) (that is to say,plot II), north of the house and site of Sambanda Naicker and the lane which I have left in common for egress and ingress and south of Ekambaram Pillai’s house and site: east-west measurement 30’; north-south measurement 22’ .”

4. As we shall see, the first defendant is the successor-in-title of the vendee under Exhibit B-3, and she contends that the common lane referred to is Plot V, the disputed plot in this appeal, and that a right of passage to and from the street in the east was granted to the vendees under Exhibit B-3 by the original owner, Munusami.

5. The question for consideration will be whether this contention is right, but in the meantime, I shall proceed with the other transactions relating to these properties.

6. Next,on 28th June, 1937 (Exhibit B-4 is the registration copy) Raju Pillai sells Plot III to Kanniah Naidu (who had purchased Plot IV under Exhibit B-2). The description of the property in Exhibit B-4 is:

“ West of your house in the western row of Nelpulam Veedi, east of Munusami Pillai’s house, north of 8’ common lane and south of Ekambaram’s house: east-west measurement 30’ and north-south measurement 22’.”

7. Then on 29th April, 1938 (Exhibit B-5 is the registration copy) Munusami Pillai sells the westernmost plot (Plot I) to one Danakoti Ammal. We are not really concerned with that in this case.

8. Then on 8th August, 1945 under Exhibit A-1 Valliammal,the widow of Munusami Pillai sells plots II and V to Chidam-bara Odayar, the father of the plaintiff in the suit (Appellant in this second appeal). The properties are described as comprising of, firstly Plot II descri






















































































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