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2018 Supreme(Mad) 504
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
K. Selvamani & Others - Appellant
Versus
Palani Ammal - Respondent
S.A. No. 613 of 2003
Decided On : 07-03-2018
Subject
Easement - Easement by Prescription
Headnote
Land Laws – Suit for permanent injunction – Challenge in this second appeal is made to the Judgment and Decree passed in A.S. on the file of the Additional District and Sessions Judge cum Chief Judicial Magistrate Court, Namakkal, reversing the Judgment and Decree passed in O.S. on the file of the Principal District Munsif Court, Namakkal. – Whether the lower Appellate Court erred in misconstruing the report of the Commissioner for holding that the appellant has not established the prescriptive right to the use of the suit cart track – Whether the lower appellate Courts conclusion is contrary to the evidence in the case regarding the existence and use of the suit cart track by the plaintiffs – Whether the lower appellate Court erred in not giving the reasons for differing from the conclusions of the trial Court – Held, It is argued by the defendants counsel that the suit laid by the plaintiffs claiming right over the suit cart track by way of easement by prescription as such is not maintainable in the light of the decision of the apex Court reported in (2014) 1 SCC 669 (Curdwara Sahib Vs. Gram Panchayat Village Sirthala and another). – However, as rightly argued by the plaintiffs counsel, the above said decision being found to be as regards the plea of ownership, on the basis of the adverse possession, the same is not applicable to the facts and circumstances of the case at hand. – Considering the facts and circumstances of the present case, particularly, the plaintiffs having not claimed the relief of declaration in respect of the suit cart track as such and even otherwise, sought the relief of permanent injunction only by claiming right over the suit cart track by way of easement by prescription and further when it is found that the establishment of the claim of title over the lands on the plea of adverse possession and the claim of a right by way of easement by prescription are not similar and operating in different fields as such, above contention of the defendants counsel is not required to be addressed and determined in this case, particularly, when in the light of the above discussions, Court have held that the plaintiffs had failed to establish the existence of the suit cart tract as such and their usage and enjoyment of the same for several years as projected for entitling them to acquire the right over the same by way of easement by prescription. – Second Appeal Dismissed
For the Appellants :C. Jagadish, Advocate.
For the Respondent:S. Sounthar, K. Kuppusamy, Advocates.
1. Challenge in this second appeal is made to the Judgment and Decree dated 30.09.2002 passed in A.S.No.43 of 2002 on the file of the Additional District and Sessions Judge cum Chief Judicial Magistrate Court, Namakkal, reversing the Judgment and Decree dated 30.01.1996 passed in O.S.No.435 of 1993 on the file of the Principal District Munsif Court, Namakkal.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for permanent injunction.
4. The case of the plaintiffs, in brief, is that the lands shown as P in the plaint plan belonged to the second plaintiff and the same had been taken on lease by the first plaintiff by way of a registered lease deed dated 18.09.1992 and the above said property and the other lands, situated on the eastern and southern side, originally belonged to one Karuppanna Pillai and the total extent measuring 6 acres and 85 cents and the lands originally called as Mookan Punja lands and accordingly, it is stated that the lands belonging to the second plaintiff, after passing several hands, had come to be purchased by the second plaintiff's father Vangili gounder on 27.04.1938 and accordingly, it is stated that pursuant to the family partition effected on 04.05.1971, the plaint B schedule property was allotted to the second plaintiff and the lands comprised in survey No.60/3 was allotted to the plaintiff's brother Ramasamy and after the death of Ramasamy, his son, the defendant acquired the lands allotted to his father, which are shown as D, D1 and D2 in the plaint plan and according to the plaintiffs, the lands shown as P were allotted to him under the above mentioned partition deed and on the eastern side of the above said lands, common Etari is running and it is stated that the plaintiffs and their predecessors in interest had been taking their cattle, tractor, Cart etc., through the suit Cart track shown as AB in the plaint plan for more than 35 years for reaching their lands described as P in the plaint plan continuously and thereby, acquired easementary right over the same by way of prescription and further, it is stated that other then the said suit cart track, the plaintiffs have no other access to reach their lands and while so, the defendant developing enmity on account of the refusal of the plaintiffs to alienate their lands, is attempting to interfere with the possession and enjoyment of the suit cart track by the plaintiff and hence, according to the plaintiffs, they have been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendant, in brief, is that it is true that the defendant has been enjoying the lands shown as D, D1 and D2 in the plaint plan by way of inheritance from his father and it is for the plaintiffs to establish their claim of title to the lands shows as P in the plaint plan and it is true that the common Ettari runs on the eastern side of the land belonging to the parties. However, it is false to state that the plaintiffs and their predecessors in interest had been using the suit cart track shown as AB in the plaint plan for taking cattle, cart, lorry, tractor etc., to reach their lands and thereby, prescribed easementary right over the same on account of their long and continuous enjoyment by way of prescription and it is false to state that other than the suit cart track, there is no other cart track for enabling the plaintiffs to reach their lands and it is false to state that the defendant is attempting to interfere with the enjoyment of the suit cart track by the plaintiffs and on the other hand, the plaintiffs or their predecessors in interest, at no point of time, enjoyed the suit cart track as claimed and there is no opening at the point A at any point of time for the plaintiffs to have access and enjoyment of any cart track shown as AB plaint plan and taking advantage of the exparte order of injunction, the plaintiffs attempted to lay a new cart track and accordingly, took the advocate commissioner for establishing
