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2010 Supreme(Mad) 3648
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. JAICHANDREN
Sengodagounder & Another
Versus
K.S. Nallsivam
S.A.No.31 of 2006 & C.M.P.No.597 of 2006
Decided On : 24-08-2010
Important Points
Subject
Property Law - Easements and Property Disputes
Headnote
cart track - Property Dispute - O.S.No.190 of 1999 - R.S.No.81/1A, R.S.Nos.84/16, 84/8, 83/17 - Tamil Nadu Survey Manual, Departmental Rules - easement by grant, easement by prescription, easement by necessity - joint ownership - private cart track - Nilavaiyal Pathai - report of the Advocate Commissioner - Exs.B-1 to B-4 - Sellappa Goundar v. Natesan, Arunachalam Pillai v. Sorimuthu Pillai, Khurshed Banoo v. Vasant Mallikarjun Manthalkar
Fact of the Case:
The suit involved a dispute over a cart track on ancestral properties. The plaintiffs sought a decree of permanent injunction, while the defendant claimed rights to use the cart track based on easement by grant, prescription, and necessity. The trial court granted a decree of permanent injunction in favor of the plaintiffs, except for a 15 feet wide cart track in R.S.No.83/17. The first appellate court confirmed the trial court's decision, leading to the second appeal.
Finding of the Court:
The Courts below found that the defendant had admitted the title of the plaintiffs in the suit properties, except in R.S.No.83/17. The trial court also found that the defendant had been using the cart track for more than 30 years and had the right to use it. The Courts relied on the report of the Advocate Commissioner and evidence available on record to conclude that the defendant was entitled to use the cart track to an extent of 15 feet in width.
Issues: The main issues were whether the plaintiff was entitled to the relief of permanent injunction, whether there was any cause of action, and what other relief was available.
Ratio Decidendi: The Courts relied on the evidence available on record, including the admissions made by the parties and the report of the Advocate Commissioner, to determine the defendant's right to use the cart track. The Courts also considered the principles of easement by grant, prescription, and necessity in reaching their decision.
Final Decision: The second appeal was dismissed as the Courts below had arrived at their conclusions based on the evidence available on record, and no substantial question of law was raised for consideration.
For the Appellants:N. Manokaran, Advocate.
For the Respondent:T.D. Vasu, Advocate.
1. This second appeal has been filed against the judgment and decree, dated 30.6.2003, made in A.S.No.86 of 2003, on the file of the Additional District Court (Fast Track Court No.IV) Erode, at Bhavani, confirming the judgment and decree, dated 14.12.2001, made in O.S.No.190 of 1999, on the file of the I Additional District Munsif Court, Bhavani.
2. The plaintiffs in the suit, in O.S.No.190 of 1999, on the file of the I Additional District Court, Bhavani, are the appellants in the present second appeal. The defendant in the said suit is the respondent herein. The suit had been filed praying for a decree of permanent injunction.
3. It has been stated by the appellants, who were the plaintiffs in the suit, in O.S.No.190 of 1999, that the first appellant is the father of the second appellant. The respondent is their neighbour. It has been further stated that the suit properties are the ancestral properties of the appellants. The respondent, who is the owner of the property situated in R.S.No.81/1A, had claimed certain rights in the cart track running through R.S.Nos.84/16, 84/8 and 83/17, from Kannimadaipudur Road, to his patta land.
4. On the contrary, in the written statement filed on behalf of the defendant in the suit, who is the respondent herein, it had been stated that he is entitled to use the suit cart track, by way of easement by grant, easement by prescription and easement by necessity, in respect of the lands in R.S.No.83/17.
5. In view of the averments made by the plaintiffs in the suit and the defendant therein, the trial Court had framed the following points for consideration:
“1.Whether or not the plaintiff is entitled to the relief of permanent injunction as prayed for?
2. Whether or not there is any cause of action?
3. To what other relief?”
6. During trial, the second plaintiff had examined himself as P.W.1. No document had been marked on his behalf. D.W.1 to D.W.3 had been examined on the side of the defendants and Exs.B-1 to B-4 had been marked. Exs.C-1 and C-2 had been marked, as Court documents.
7. In view of the averments made on behalf of the plaintiffs, as well as the defendant and in view of the evidence available on record, the trial Court had found that the defendant had admitted the title of the plaintiffs in respect of the suit properties, except in the property in R.S.No.83/17. Therefore, based on the admission of the defendant the trial Court had granted a decree of permanent injunction in favour of the plaintiffs in the suit. From the oral evidence adduced by the second plaintiff, as P.W.1, the trial Court had found that he had admitted the existence of the cart track, in R.S.No.83/17, for more than 30 to 35 years. He had also admitted that the defendant has the right to use the cart track. Even though the width of the cart track was in dispute, it had been admitted on behalf of the plaintiffs that the defendant has been using the cart track by taking his tractor, tyre carts and sugarcane threshing machine.
8. It had also been found that the plaintiffs had admitted that the suit cart track had been used by the defendant’s ancestors and that there was no impediment for the defendant to use the same. The trial Court had relied on Exs.B-1 to B-3 to come to its conclusion that there was joint ownership in respect of the property in question. The trial Court had also found that, even though the defendant had claimed his right of using the cart track, having a width of about 36 feet, he had submitted that it would be sufficient, if he was permitted to use the cart track upto 15 feet. As such, the trial Court had granted a decree of permanent injunction in favour of the plaintiffs, in respect of the suit properties, except 15 feet wide cart track, in R.S.No.83/17 of Kannimadaipudur, Periyapuliyur Village,Bhavani Taluk, Erode District.
9. Aggrieved by the judgment and decree of the trial Court, dated 14.12.2001, made in O.S.No.190 of 1999, relating to the 15 feet wide cart track, in R.S.
