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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SAMPATH
Samsudeen
Versus
Krishnan & Others
S.A. No. 1566 of 1984 & C.M.P. No. 13479 of 1984
Decided On :Decided on : 25-02-1998
EASEMENT OF NECESSITY - SECTION 13(C) OF THE INDIAN EASEMENT ACT - ALTERNATIVE PATHWAY - PRESCRIPTION - SUMMARY
Fact of the Case:
Plaintiffs filed a suit for declaration of their joint ownership over a pathway, their right of way over it as an easement of necessity, and a consequential injunction restraining the defendants from causing any obstruction or hindrance to such user. The defendants contended that there was an alternative pathway available and that the plaintiffs had no right of easement of necessity.
Finding of the Court:
The court found that the plaintiffs had no other means of access to their property except the suit pathway and that the alternative pathway was not available to them as of right. The court also found that the plaintiffs had been using the suit pathway for a long time and had acquired a prescriptive right to use it.
Issues: 1. Whether Section 13(c) of the Indian Easement Act can be attracted when the plaintiffs have an alternative pathway? 2. Whether the findings of the courts below are right in granting relief on the ground of easement of necessity when an alternative pathway is available? 3. Whether the courts below are right in granting relief for a pathway on the ground of prescription when there is no proof for such prescriptive right or any grant for such long user?
Ratio Decidendi: The court held that Section 13(c) of the Indian Easement Act cannot be attracted when the alternative pathway is not available to the plaintiffs as of right. The court also held that the findings of the courts below were right in granting relief on the ground of easement of necessity and that the plaintiffs had acquired a prescriptive right to use the suit pathway.
Final Decision: The court dismissed the second appeal and upheld the decision of the lower courts.
1. The third defendant is the appellant. Respondents 1 and 2 filed suit O.S. No. 1139/80 before the District Munsif of Dindigul against the appellant and respondents 3 to 8 for declaration of their joint ownership over a pathway, their right of way over it as an easement of necessity and for a consequential injunction restraining the appellant and respondents 3 to 8 from causing any obstruction or hindrance to such user.
2. The averments in the plaint necessary for the disposal of the Second Appeal are as follows:
Respondents 1 and 2 were the owners of the land shown in red colour and marked as ABCD in the plaint plan. Originally the properties in S. Nos. 162-A/7-A, 162/7-B and 162/7-C situate south of ABCD belonged to two brothers Ramasamy Vanniyanar, Thiruvengada Vanniyanar and their unmarried blind sister Pappathiammal. In a partition that took place about 50 years prior to the filing of the suit in S. No. 162-A/7-A, the western portion fell to the share of Ramasamy Vanniyanar, the middle portion to Thiruvengada Vanniyanar and the eastern portion to Pappathiammal. At the time of partition, the land ABCD had been carved out for the use of the allottees of the middle and eastern portions. The western partion had access from the Railway Colony Road in the west and for the access of the middle; and the eastern portions, the suit pathway 7 north to south and marked as ABCD was being used as pathway for ingress and egress by the middle and eastern allottees. There was a sub division of S.F. Nos. 162-A/7-A as 162/7-A, 162/7-B and 162/7-C and the same had been in the possession and enjoyment of Ramasamy, Thiruvengadam and Pappathiammal respectively. Except the suit pathway, there was no other access available. The first respondent was the son of Thiruvengadam and after Thiruvengadams death in 1950, the middle portion, viz . S.F. No. 162/F-B had been in his possession and enjoyment. After the life time of Pappathiammal, her heirs had been dealing with the, eastern portion allotted to her and after successive sales, Lakshmana Vanniyanar became the owner of the said portion, Viz. R.S. No. 162/7-C. The western portion appeared to have been conveyed in favour of the fourth respondents father one Doraisamy Chettiar. The first respondent and his predecessors-in-tiile were in enjoyment of the ABCD suit land as also Lakshmana Vanniyanar and his predecessprs-in-title for a long number of years and they had all prescribed title by adverse possession. The third respondent, attempted to convey the suit land in favour of the appellant and he tried to interfere with the first respondents possession and enjoyment. The first respondent had also laid his tap connection through the suit lane and had been paying water tax and house tax. The third respondent Municipality at the instigation of the fourth respondent was giving out that it would cause disconnection of water tap situated within the suit lane. The second respondent is the son of the first respondent. The fifth respondent was the mother of the fourth respondent and respondents 6 to 8 were the sister and brothers of the fourth respondent. They had sold the western house site to the appellant on 1-10-1980 for Rs. 5000/-. By such sale the right of the first respondent with regard to the use of the pathway was affected. The suit was therefore necessitated.
3. The defence in essence was that there was an alternative pathway on the east of the first respondents property proceeding towards south and turning towards west and it was being used by the first respondent and the eastern and southern owners had access. The plaint plan also was disputed as also the other averments in the plaint, which are not necessary to notice.
4. The third respondent Municipality, which was the second defendant in the suit, contended that it was an unnecessary party, that pursuant to the application by the first respondent an estimate was prepared and tap connection was given to him after receiving the necessa
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