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MADRAS HIGH COURT
R.Mahadevan, J.
K.Krishnamoorthy - Appellants
Versus.
Nagammal & Others - Respondents
S.A.No.70 of 2007
Decided on : 18.11.2014.
Civil Laws – Declaration – Mandatory Injunction – Plaintiff/appellant herein filed the abovesaid suit for the relief of declaration that the plaintiff is entitled to the user of the common pathway for his free engress and ingress without any hindrance whatsoever to reach A schedule property and for mandatory injunction directing the defendants to remove the unlawful obstruction of 2 feet brick wall on the west of B schedule property and situate very near to south of the A schedule property on or before a date that may be prescribed by the court and in failure thereof, to appoint an officer of the court to effect such removal at the cost of the plaintiff, which is recoverable by him from the defendants later. – Held, A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. – The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. – The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right. – A suit for declaration of title and possession relates to the existence and establishment of natural rights which inhere in a person by virtue of his ownership of a property. – On the other hand, a suit for enforcement of an easementary right, relates to a right possessed by a dominant owner/ occupier over a property not his own, having the effect of restricting the natural rights of the owner/occupier of such property. – Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. – Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. – A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. – Pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. – In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). – He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. – For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendants servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. – Court may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. – Court have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence. – Order Accordingly
Plaintiff, who lost his case before both the courts below is the appellant in the second appeal.
2. The plaintiff/appellant herein filed the abovesaid suit for the relief of declaration that the plaintiff is entitled to the user of the common pathway for his free engress and ingress without any hindrance whatsoever to reach ''A'' schedule property and for mandatory injunction directing the defendants to remove the unlawful obstruction of 2 feet brick wall on the west of ''B'' schedule property and situate very near to south of the ''A'' schedule property on or before a date that may be prescribed by the court and in failure thereof, to appoint an officer of the court to effect such removal at the cost of the plaintiff, which is recoverable by him from the defendants later.
3. The case of the plaintiff is as follows:
The suit ''A'' schedule property originally belonged to the father of the plaintiff by name M.Karuppuswamy, having been purchased by him under a registered sale deed dated 03.09.1963 and eversince from the date of such purchase, the plaintiff is in possession and enjoyment of the same. The father of the plaintiff died on 24.11.1991. The adjacent land to 'A' schedule property belonged to one M.Nagappan, who is none other than the brother of the plaintiff's father. First defendant is the wife, and defendants 2 and 3 are the sons of the said Nagappan. In the land purchased by the said Nagappan, he had left a pathway for the use of the plaintiff's family to have access to their house by way of a document executed on 30.6.1988 in favour of the plaintiff's father. Even prior to such document, from the date of purchase of 'A' schedule property, the plaintiff and his family members are using the suit pathway viz., 'B' schedule property, thereby, the plaintiff and his family members have got adverse possession of ''B'' schedule property for nearly 40 years. After the death of the said Nagappan, defendants 2 and 3 put up a brick wall to an extent of about 2 feet out of 4 feet left to the plaintiff's father under the above said document dated 30.06.1988. The plaintiff had lodged a police complaint against such activity of the defendants, and was advised to approach the civil forum. The plaintiff and his family members have no other access to their house except the suit pathway. Hence, the suit has been filed for declaration and mandatory injunction.
4. The suit was resisted by the defendants/ respondents herein contending as follows:
'A' schedule property does not belong absolutely to the plaintiff alone and apart from the plaintiff, his brother Sundararaj and his mother Arayammal are joint owners of 'A' schedule property and hence, the suit filed by the plaintiff is not maintainable. Apart from the defendants, late Nagappan had left behind four daughters and hence, the suit filed, as such, against the present defendants alone is not sustainable in law. Neither the plaintiff nor his father was given any easementary right over the property of late Nagappan which now belongs to the defendants. The defendants have put up construction viz., compound wall in their property long back. Hence, the plaintiff is not entitled to the relief sought for and the suit is liable to be dismissed.
5. The Trial Judge framed the following issues:
i) Whether the plaintiff is entitled to the relief of declaration?
ii) Whether the plaintiff is entitled to the relief of mandatory injunction?
iii) To what other relief?
6. During trial, the plaintiff examined himself as PW1 and marked 7 documents as Exs.A1 to A7, while the second defendant examined himself as DW1 and no document was marked on the side of the defendants. On analysis of the oral and documentary evidence, the Trial Court dismissed the suit. On appeal, the appellate court concurred with the finding of the Trial Court. Aggrieved against such a concurrent finding, the present second appeal has been filed by the plaintiff.
7. The second appeal has been admitted identifying the following questio
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