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2018 Supreme(Mad) 1050
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Rajammal – Appellant
Versus
Manonmani – Respondent
S.A. No. 570 of 2004
Decided On : 06-04-2018
For the Appellants : Mythili Suresh, M/s. Sarvabhauman.
For the Respondent: Kinston Jerold.
The central legal point established in the judgment is the requirement for proper evidence to support claims of easementary rights, as well as the contradictory nature of claiming easementary rights by way of prescription and necessity.
Headnote:
Easementary Right - Property Dispute - Indian Easements Act, 1882, Sections 13, 15 - The court discussed the plaintiff's claim of easementary right over a pathway and the defendant's challenge to the same. The court found that the plaintiff failed to establish her claim of easementary right both by way of prescription as well as by way of necessity. The judgment and decree of the first appellate Court were upheld, and the second appeal was dismissed with costs.
Fact of the Case:
The plaintiff claimed ownership of a house and the vacant space around it, including a pathway, while the defendant disputed the plaintiff's right to the alleged pathway. The trial court decreed the suit in favor of the plaintiff, but the first appellate court set aside the judgment and decree, leading to the second appeal.
Finding of the Court:
The court found that the plaintiff failed to establish her claim of easementary right over the alleged pathway, as the evidence did not support her assertions. The first appellate court's decision to dismiss the suit was upheld.
Issues: The issues revolved around the plaintiff's claim of easementary right over the pathway, the existence of alternative access, and the validity of the plaintiff's evidence.
Ratio Decidendi: The court held that the plaintiff's claim of easementary right by way of prescription and necessity was contradictory and not supported by the evidence. The court also emphasized the importance of proper evidence in establishing easementary rights.
Final Decision: The second appeal was dismissed, and the plaintiff's suit was rejected, with costs awarded to the defendant.
1. Challenge in this second appeal is made to the judgment and decree dated 03.03.2003, passed in A.S. No. 33/2002, on the file of the Additional District Judge (Fast Track Court No. V, Coimbatore) at Tirupur, reversing the judgment and decree dated 16.08.2001, passed in O.S. No. 622/1995, on the file of the District Munsif cum Judicial Magistrate Court at Palladam.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for declaration and permanent injunction.
4. The case of the plaintiff, in brief, is that she is the owner of the house bearing door no. 6/111 and the vacant space around it in the suit village and the plaintiff got the property by virtue of the patta granted by the Government and the plaintiff constructed the house in the year 1969 and residing therein for the past 25 years and the defendant is the adjacent neighbour having her property on the north and the west of the plaintiff's property and the defendant had also got her property by way of patta from the Government and there is a north south pathway on the northern side of the plaintiff's property and in between the defendant's property and the said pathway is in existence for the past about 30 years for the plaintiff to reach the east west Tiruppur Othakalmandapam main road and the said pathway is the suit property and the same is shown as ABCD in the plaint plan and the width is 3 feet and the length is 65 feet and the pathway has been in the use of the plaintiff for reaching the main road for the past 30 years openly, continuously and to the knowledge of the defendant and others. The plaintiff has also the easement of necessity and easement by way of prescription to the suit pathway and the defendant by using his influence encroached the major portion of the pathway and left only 3 feet pathway to the plaintiff and recently, the defendant with an intention to occupy the suit pathway attempted to put padals on the north and south of the pathway and in this connection, the plaintiff presented a petition before the Revenue Divisional Officer, Tiruppur and the Revenue Divisional Officer had granted a stay in favour of the plaintiff and ordered the defendant not to make any obstruction in the suit pathway by way of an order dated 24.01.1984 and despite the said order, the defendant has tried to interfere with the plaintiff's enjoyment of the suit pathway by putting up obstruction and hence, according to the plaintiff, she had 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 false to state that the plaintiff has right to the alleged suit pathway both by way of prescription and by way of necessity as an easementary right and the right of way by easement of necessity and by prescription do not co-exist and they are mutually contradictory and there is a road branching of from the Tiruppur road and proceeding southwards east of the Valliammal's house and the plaintiff reaches her house by proceeding through this mud road and turning westwards in the road that leads to her house and it is true that through this road the plaintiff is taking carts and when there is a well laid road to reach her house, the plaintiff cannot claim any right of way over the defendant's property as an easement by way of necessity. The defendant is entitled to put her property to any kind of use and the plaintiff has no entitlement to question the same and hence, the suit laid by the plaintiff without any cause of action is liable to be dismissed.
6. In support of the plaintiff's claim PWs. 1 and 2 were examined, Exs.A1 to A6 were marked. On the side of the defendant DW-1 was examined, Exs.B1 to B3 were marked. Exs.C1 and C2 were also marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to decree the suit as prayed for. On appeal, the first appel
