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1991 Supreme(Mad) 778
High Court of Judicature at Madras
JANARTHANAM
Madasami Chettiar
Versus
Rajeswari
S.A. No. 93 of 1982 and Cross Objection therein.
Decided On :Decided on: 22-10-1991
For the Appellant:R. Alagar, Senior Counsel, Y.K. Rajagopal, Advocates.
For the Respondent:V. Kunchithapatham, R. Srinivasan, Advocates.
The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled as against the dominant owner, to use the servient heritage in any way, consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement, or to render its exercise less convenient.
Headnote:
EASEMENT - DISTURBANCE - GATE ON PATHWAY - NARROWING OF PATHWAY - OBSTRUCTION - REMOVAL OF GATE - LATCHING ARRANGEMENT - INJUNCTION.
Fact of the Case:
Plaintiff claimed an easement of pathway over a property owned by the defendant. The defendant had put up a gate, sunshade, footsteps, and cement pavement on the pathway, which the plaintiff alleged caused obstruction to her right of way. The trial court granted a decree for declaration, permanent injunction, and mandatory injunction. The lower appellate court partly allowed the appeal, modifying the judgment and decree of the trial court in respect of the declaration of the land as a common pathway but confirming the judgment and decree in respect of the mandatory and permanent injunctions.
Finding of the Court:
The High Court held that the plaintiff had an easement of pathway over the property and that the defendant's constructions, except for the gate, did not cause any obstruction to the plaintiff's right of way. The court directed the defendant to remove the gate and replace it with a gate of the width of the pathway with a latching arrangement without any locking facilities.
Issues: 1. Whether the acts complained of amounted to disturbance of easement within the meaning of S. 33 of the Indian Easements Act (Act V of 1882)? 2. Whether the decree, without a finding that the plaintiff's right of way is obstructed, is sustainable?
Ratio Decidendi: 1. The court held that the defendant's constructions, except for the gate, did not cause any obstruction to the plaintiff's right of way, as they were not substantial damage to the plaintiff's easement. 2. The court held that the gate put up by the defendant on the western extremity of the pathway was an obstruction to the plaintiff's easement and directed the defendant to remove the gate and replace it with a gate of the width of the pathway with a latching arrangement without any locking facilities.
Final Decision: The High Court partly allowed the second appeal and cross objections, setting aside the relief of mandatory injunction granted by the trial court and the lower appellate court for the removal of the sunshade, footsteps, cement pavement, and other constructions put up by the defendant, and directing the defendant to remove the gate on the western extremity of the pathway and replace it with a gate of the width of the pathway with a latching arrangement without any locking facilities.
Based on the provided legal document, the key points of the case are as follows:
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The plaintiff, Rajeswari, claimed an easement of pathway over the defendant Madasami Chettiar's property. The plaintiff's right of way was established through prior conveyances, and the property was used as a common pathway without disturbance for a significant period (!) (!) .
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The defendant constructed various structures such as a gate, sunshade, steps, and pavement on the pathway, which the plaintiff argued caused obstruction and interference with her easement rights. The trial court initially granted a decree for declaration, permanent injunction, and mandatory injunction to remove these obstructions (!) (!) .
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The appellate court partly modified the trial court's decision, particularly regarding the declaration of the land as a common pathway, but upheld the injunctions requiring removal of the structures causing obstruction (!) .
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The High Court analyzed the nature of the defendant's constructions, concluding that most did not significantly obstruct the easement, except for the gate at the western end of the pathway. The court found that the gate, especially if smaller than the pathway's width, could restrict the easement and should be removed or replaced with a gate of the same width as the pathway, fitted with a non-locking latching arrangement (!) (!) (!) .
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The court emphasized that the servient owner (defendant) has the right to use the servient heritage in any manner consistent with the enjoyment of the easement, but must not do acts that restrict or make the easement less convenient. The installation of structures that narrow or block the pathway constitutes a restriction under applicable legal principles (!) (!) .
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The final decision was to set aside the mandatory injunction for removal of structures like the sunshade, steps, and pavement, but to uphold the injunction requiring the removal of the gate and the installation of a gate of the same width as the pathway with a latching arrangement, to be done within two months. The court disposed of the appeal and cross objections accordingly, without awarding costs (!) (!) .
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Overall, the court reaffirmed that acts by the servient owner that cause substantial obstruction or restrict the easement's exercise are unlawful, and the easement holder is entitled to an injunction to prevent or remove such obstructions (!) .
This summary encapsulates the court's reasoning, the nature of the easement, and the remedies granted.
One Madasami Chettiar, the appellant herein, was the defendant. One Rajeswari, the respondent herein, was the plaintiff.
2. The plaintiff filed the suit in O.S. No. 348 of 1978 on the file of the District Munsif, Tuticorin for declaration, permanent injunction and mandatory injunction.
3. The basis of the claim of the plaintiff rests on the following pleas:— Schedules I and II properties originally belonged to the defendant. He sold the same as a vacant site to one Sankaran Chettiar under the original of Exhibit A1 sale deed, dated 26.2.1973. The said Sankaran Chettiar put up a tiled house in the vacant site and thereafter, he sold both the scheduled properties to the plaintiff, under the original of Exhibit A2 sale deed, dated 25.2.1976. The said house was given door No. 73-D. Schedule II Property is a common pathway, the suit properly. The plaintiffs predecessors in title and the plaintiff were enjoying the same without any disturbance or obstruction from any quarter whatever all along. The plaintiff laid municipal drinking water pipe underneath and pathway. The said water pipe does not affect or hinder the enjoyment of the pathway by anyone. The defendant, in due course of time, claiming exclusive right to the pathway, put up a door at the western end and causing obstruction for free egress from and ingress into the pathway. He had also erected a sun-shade over the window of his house and diverted rain water from the house top to fall in the common pathway through several vents from the open terrace. He had also put up steps in the pathway for gaining entry into the house constructed by him. A cement pavement had also been laid. All these constructions put up by the defendant caused obstruction to the free exercise of the right of the pathway for egress from the ingress into the house of the plaintiff. Hence, the suit had been laid for the aforesaid reliefs.
4. The suit had been resisted by the defendant inter alia contending that the second schedule property is not a common pathway; but, on the other hand, it belongs to him exclusively; that the constructions, he has put up, such as sun-shade, doorsteps, pavements etc., did not cause any obstruction to the enjoyment of the right of pathway in any manner whatever and therefore, the suit is liable to be dismissed.
5. Learned District Munsif, on the pleadings raised by the parties, framed necessary and requisite issues and the parties went on trial and adduced evidence on the issues so raised. He recorded a finding, on the materials available on record, that the second schedule property is a common pathway and that the defendant is not exclusively entitled to the same. On the basis of the said finding, he decreed the suit as prayed for with costs, giving two months time for compliance of mandatory injunction.
6. Aggrieved defendant filed appeal in A.S. No. 109 of 1980 on the file of Additional Sub-Court, Tuticorin. Learned Subordinate Judge, on consideration of the materials available on record and after hearing the arguments of respective learned counsel for the parties, recorded a finding that the plaintiff will not be entitled to a declaration of the land used as passage as a common pathway and on the basis of such finding, the appeal has been partly allowed modifying the judgment and decree of the trial court in respect of declaration of the land in the common pathway and confirming the judgment and decree of the trial court in respect of the mandatory and permanent injunctions with a direction that the parties should bear their own costs throughout, giving rise to the present Second Appeal by the defendant and Cross Objections by the plaintiff.
7. Learned counsel for the defendant/appellant would raise the following substantial questions of law for consideration:—
(1) Whether the acts complained of amount to disturbance of easement within the meaning of S. 33 of the Indian Easements Act (Act V of 1882)?
(2) Whether the decree, without a finding that the plaintif
