2007 Supreme(Mad) 1203

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE P. JYOTHIMANI
Chinna Poojari & Another
Versus
K. Ramsami & Another
Second Appeal No.387 of 1995 and C.M.P.No.3965 of 2006
Decided On : 04-04-2007

Headnote:A. PROVISO OF CIVIL PROCEDURE CODE - SECTION 100(5) - Addl. substantial questions of law are to be framed when the one framed at the time of admission does not survive - (Para 6)

       In view of the same, as rightly contended by the learned Senior Counsel for the respondents in this appeal, the plea of easement of necessity has been given up by the plaintiffs and therefore, the substantial question as framed, does not survive resulting in the obligation of framing additional substantial questions of law under Section 100(5) Proviso of the Code of Civil Procedure as follow :

       Whether the First Appellate Court was right allowing the appeal on the basis that the suit cart-track has been used as a mamool pathway apart from relying upon the documents to come to the conclusion that they are demarcated pathway as it is seen in Exs.A.16 and A.17 ? (Para 6)

       B. In the absence of pleadings, no evidence can be looked into (Para 9)

       The learned Senior counsel would further contend by relying upon the judgments of the Hon’ble Supreme Court reported in 2003(4) SCC 161 that in the absence of pleadings, no evidence can be looked into in relation to those matters by relying upon Order 6 Rule 2 of Code civil Procedure. I am afraid that on the facts of this case the above said judgment may not have any application, for, the plaint categorically says the suit cart-track is mamool pathway for all the land owners in Survey No. 188 and 194 Sangari Village". Therefore, it is to substantiate the said pleading if evidence is let in by the plaintiff the same cannot be denied by relying upon Order 6 Rule 2 of Code Civil Procedure. In such circumstances, since the plaintiffs case, which was also based on easement of necessity has been given up and the First Appellate Court has decided on different issue, the additional documents filed on behalf of the appellants/defendants in the second Appeal stage for the purpose of proving alternate pathway to the plaintiffs does not arise therefore, C.M.P. No.3965 of 2006 in S.A. No.387 of 1995 has no relevancy and in view of the same said CM.P. is dismissed. (Para 9)

       C. Field measurement maps marked as ex. A16 and A17 confirm existence of mamool pathway - first appellate court’s conclusion is correct and no substantial question of law is involved (Para 11)

       In addition to that as rightly contended by the learned Senior Counsel appearing for the respondent Mr. T.R Mani, the First Appellate Court after analyzing Exs.A22 to A.25 and Ex.B.1 has held that existence of the mamool pathway has been confirmed by Exs.A.16 and A.17 which are the field measurement maps. In such circumstances there is no difficulty to come to the conclusion that it was based on the factual position and appreciation of various documents the Appellate Court has come to the conclusion that the suit pathway is a mamool pathway and therefore, there is no substantial question of law involved in this case at all. (Para 11)

       D. TRANSFER OF PROPERTY, SECTION. 8 & 55 (1) (a) - The incidents transferred in a dominant heritage include the easement annexed there to and mentioning of it is not necessary - But in a servient heritage, the vendor is bound to disclose any material defect like a common pathway (Para 12 and 13)

       However, Mr. K. Duraisamy, learned Senior Counsel appearing for the appellant has raised a point that when the earlier document in respect of the property ranging from 1935 to 1975 marked Exs. A1 to A5 have not chosen to mention anything about the mamool pathway or cart-track, mere mention of the same under later documents Exs. A.22 to A.25 or B.1 cannot be taken as if the presence of mamool pathway has been proved. I do not agree with the said contention. Even Ex.A.22 to A.25 are relating to 1957, 1958 and 1974 and as it is rightly pointed out by the learned Senior Counsel Mr. T.R Mani appearing for the respondents, Ex.A.1 to A.5 are relating to the dominant tenement while Exs.A.22 to A.25 and B1 relating to servient tenement which require the stipulation about the existing passage. It is a settled law that if it is a dominant heritage such right even without mentioning explicitly will be deemed to be inherent in the construction of the document. In such cases as it is pointed out under Section 8 of the Transfer of Property Act, 1882 while effecting operation of transfer the incidents which are transferred include the easement annexed thereto and mentioning of that may not be necessary. But on the other hand if it is servient heritage it is the duty of the seller to disclose as it is seen under Section 55(1)(a) of the Transfer of property Act which states as follows :

       55 (1)(a) to disclose to the buyer any material in the property or in the seller’s title thereto of which the seller, is and the buyer is not, aware, and which the buyer could not with ordinary care discover;

       Accordingly, if the document marked under Exs.A.1 to A.4 were of dominate heritage they do not require the disclosure of the passage and since Exs.A.22 to A.25 and B.1 relate to servient heritage there is a disclosure by the vendor in his interest about the existence of the pathway and that does not mean that there was no common cart-track at all which is called as a mamool pathway. In addition to that as correctly pointed out by the learned First Appellate Court the field survey map marked as Exs.A.16 and A.17 show the presence of a pathway in the public record and therefore, there is no difficulty to come to the conclusion that this has been used by public as a mamool pathway. (Para 12 and 13)

       E. The plans relating to the latest survey by public authorities will prevail over older surveys.

       The further contention raised on behalf of the learned Senior Counsel for the appellant that while the field map Exs.B.1, B.2 and B.3 does not show the suit pathway while Exs.A.16 and A.17 Giled measurement sketch shows the pathway cannot be said to be contradictory for the simple reason that Exs.B.1, B.2 and B.3 are relating to the old survey plans prior to resurvey while admittedly Exs.A.16 and A.17 are the latest field measurement maps and therefore, the later survey alone will prevail. In these circumstances and in the light of the analysis of evidence and documents by the learned First Appellate Judge which are factual in nature, I am of the considered view that there is absolutely no substantial question of law involves in this case and in view of the same the Second Appeal fails and the same is dismissed. No Cost. Consequently, connected CMP. is closed. (Para 15)