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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Subramaniam - Appellant
Versus
Maramma Reddiar - Respondent
S.A. No. 2097 of 2003
Decided On : 26-03-2018
Easementary Right - Property Dispute - Indian Easement Act - Section 13
Fact of the Case:
The plaintiff filed a suit for declaration, permanent injunction, and mandatory injunction claiming easementary right over a pathway shown as AB in the plaint plan. The defendant denied the existence of the pathway and the plaintiff's entitlement to easementary right.
Finding of the Court:
The Courts below dismissed the suit, but the second appeal was made challenging the decision. The substantial question of law was whether the plaintiff proved his entitlement for the relief of easement of necessity as prescribed under Section 13 of the Indian Easement Act.
Issues: The main issue was the existence of the pathway and the plaintiff's entitlement to easementary right by way of necessity and quasi easementary right.
Ratio Decidendi: The Courts found that the pathway shown as AB in the plaint plan was in existence and was the direct access to the plaintiff's land. The absence of the pathway in the Government records did not undermine the plaintiff's case. The share allotted to the defendant was larger, and the pathway had been left earmarked in the defendant's land for the plaintiff's access.
Final Decision: The second appeal failed, and the Courts upheld the plaintiff's easementary right in respect of the pathway by way of necessity. The judgment and decree of the Courts below were not interfered with, and the second appeal was dismissed with costs.
1. Challenge in this second appeal is made to the judgment and decree dated 29.11.2002, passed in A.S.No.49 of 2002, on the file of the Additional District and Sessions Judge cum Chief Judicial Magistrate Court, Namakkal, confirming the judgment and decree dated 23.04.1996, passed in O.S. No.567 of 1994, 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 declaration, permanent injunction and mandatory injunction.
4. The case of the plaintiff, in brief, is that the plaintiff and the defendant are brothers. The plaintiff and the defendant owned ancestral properties in survey No.85/B and accordingly, effected division of their ancestral properties orally and thus, the properties sub divided in survey No.85/B1 was allotted to the plaintiff and the property sub divided in survey No.85/B2 was allotted to the defendant and accordingly, the parties are enjoying their respective shares by obtaining patta, paying kist etc., The plaintiff has filed the plaint plan depicting the topography of the properties belonging to the parties concerned and at the time of effecting the oral partition of the ancestral properties, the pathway measuring ten feet in width has been earmarked on the southern portion of the survey No.85/B2 for gaining access to the plaintiff's property situated in the survey No.85/B1 for taking cattle, cart etc., and the said pathway has been shown as AB in the plaint plan and even prior to the partition, the pathway has been in existence and enjoyed by the parties concerned and except the suit pathway, there is no pathway to access the plaintiff's property and thus, the plaintiff is entitled to easementary right in respect of the suit properties by way of absolute necessity and by way of quasi easementary right and while so, the defendant requested the plaintiff to sell the plaintiff's properties and on refusal, developing enmity, the defendant attempted to obliterate the suit pathway and thereby, prevent the plaintiff from having access to his property and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendant, in brief, is that the suit is not maintainable either in law or on facts. It is true that the lands comprised in survey No.85/B belonged to the parties concerned. In addition to that, the properties lying to the east of the share allotted to the plaintiff were also owned by the family and survey No.85/B was sub divided as survey Nos.85/B1 and B2 and survey No.85/B1 was allotted to the plaintiff and survey No.85/B2 was allotted to the defendant and thereby, they are enjoying their respective shares by obtaining patta, paying kist etc., and to the west of the defendant's property, Valayapatti kattuputhur road runs and to the north of the properties lie the east-west panchayat pathway to the north of the poramboke lands and though in the plaint plan, the survey numbers belonging to the respective parties had been correctly given, the description in the plaint schedule has not been correctly given and it is false to state that there has been a pathway shown as AB in the plaint plan on the southern side of the defendant's land and the same has been used for taking the cattle, cart etc., to the plaintiff's property and there has been no pathway in the AB portion as claimed in the plaint and it is false to state that the plaintiff has acquired easementary right by way of necessity and quasi easementary right in respect of the said pathway and the plaintiff is having access to his lands only through the east-west panchayat road lying on the northern side of the poramboke land and further, the plaintiff is also having access from the southern side of his property and it is false to state that the defendant attempted to obliterate the alleged pathway and thereby prevented the plaintiff from having access to his lands and inasmuch as there has been no path
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