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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
B. Shyamkumar
Versus
Francis George
C.R.P.(PD)No.782 of 2009 & M.P.No.1 of 2009
Decided on: 04-08-2009
Easement - Property Dispute - Sale Deed, Official Liquidator, Common Passage - [FACT OF THE CASE] The petitioner filed a suit seeking declaration of a common road as a common road and for an injunction restraining the defendant from encroaching or trespassing over the property. The defendant claimed exclusive right over the road and attempted to prevent the plaintiff from using it. The petitioner also filed an application for interlocutory injunction during the suit. The trial court and the appellate court dismissed the application, stating that the petitioner had an alternative access and did not have a prima facie case. [FINDING OF THE COURT] The court found that the 33 feet passage was intended for the usage of all property owners and not for the exclusive use of the defendant. The trial court and the appellate court misconstrued the claim as one of easement of necessity, while the petitioner's consistent case was that the passage was intended to be a common passage for all plot owners. [ISSUES] The main issue was whether the 33 feet passage was earmarked for the usage of all property owners. [RATIO DECIDENDI] The court held that the claim was one of easement acquired by grant and not easement of necessity. The trial court and the appellate court committed jurisdictional error by ignoring and misconstruing the documents and arrived at a perverse conclusion. [FINAL DECISION] The civil revision petition was allowed, and the court issued directions for the usage of the 33 feet passage as a common passage for the owners of the respective plots, restraining any hindrance or obstruction by the petitioner and the respondent.
Challenge in this civil revision petition is to the judgment and decree dated 1. 2009 in C.M.A.No.5 of 2008 on the file of the learned Subordinate Judge, Ponneri confirming the order dated 20.12.2007 in I.A.No.22 of 2006 in O.S.No.10 of 2006 on the file of the learned District Munsif-cum-Judicial Magistrate, Thiruvottiyur, whereby and whereunder the application preferred by the revision petitioner for the purpose of granting an order of interlocutory injunction during the pendency of the suit was dismissed. The facts:-
2. The petitioner is the plaintiff in O.S.No.10 of 2006 on the file of the learned District Munsif, Thiruvottiyur.
3. The petitioner has claimed the following reliefs in the said suit.
(a) To declare that the suit "B" Schedule property is a common road meant for the use and enjoyment of it by all as road and for a consequential injunction restraining the defendant and his men, agents, servants, subordinates or any one authorised by him from in any manner encroaching or trespassing over the "B" schedule property.
(b) For permanent injunction restraining the defendant and his men, agents, servants, Subordinates or any one authorised by him from in any manner preventing or obstructing the plaintiffs free usage and enjoyment over the suit "B" schedule property.
4. The plaint filed in O.S.No.10 of 2006 would read thus:-
(a)The plaintiff is the owner of an extent of 13,404 sq.ft. of land in Survey No.459/4 part of Puzhal Village and Survey Nos.3/1 and 4/3 part of Kadirvedu Village in Ambattur Taluk.
(b) The property having an extent of 12.17 acres originally belonged to an incorporated body by name Pilot Pen Company India (Private) Limited. The said company went into liquidation pursuant to the order dated 210. 1978 in C.P.No.11 of 1978 on the file of the High Court, Madras.
(c) As per the orders of the High Court, the property was brought for public auction. In the said auction R.Kamaraj and others came out successfully and their bids were confirmed by the High Court as per order dated 24. 1993. The High Court also directed the Official Liquidator to execute the sale deed in respect of the said property in favour of R.Kamaraj and others. Accordingly sale deeds were executed on 25. 1993 by the Official Liquidator in favour of Kamaraj and others as per registered document No.4045/1993 on the file of Sub Registrar, Redhills.
(d) The plaintiff has purchased an extent of 13,404 sq.ft. of land equivalent to 30.75 cents out of the property which was the subject matter of document No.4045/1993 by way of a sale deed dated 21. 1996. The sale deed was executed by Mr.T.Devanathan and others, who are also few of the Court auction purchasers.
(e) Ever since the date of purchase, the plaintiff has been in possession and enjoyment of the property. The sale deed was executed by T.Devananthan on his behalf and other vendors on the basis of a power of attorney dated 210. 1995 registered as document No.1254/1995 and 1255/1995 on the file of the District Registrar, Madras-North.
(f) The property taken assignment by the plaintiff is situated in the corner of G.N.T.Raod and 33 feet inner road. The plaintiff has been utilising the suit "A" Schedule property as Container Terminal Yard for storing the containers.
(g) The defendant is the owner of the property situated on the southern side of the property, which is shown as "A" Schedule in the plan attached to the plaint. There is a 33 feet road leading from G.N.T.Road passing through the eastern side of the property of the parties.
(h) The 33 feet road has been in existence for several decades and it was also shown in the sketch filed along with the court auction sale deed. The said passage was used by all the public of the locality including the plaintiff and defendant.
(i) The common passage is shown as suit "B" Schedule property in the plaint. The plaintiff has shown the "A" Schedule property, which belongs to him as "ABCD" in the rough sketch and "B" Schedule property as "DEF
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