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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Susai Mary - Appellant
Versus
A.V.Mariammal Philip and Ors - Respondent
S.A.No.505 of 2005 and C.M.P.No.688 of 2013
Decided on : 25-07-2018
Civil Procedure Code, 1908 – Section 100 – Second Appeal - First plaintiff purchased the land property under registered sale deed - Second plaintiff who is the husband of the first plaintiff, put up a dwelling house in the abovesaid land property and since the date of purchase and the house construction put up therein, the plaintiffs had been using the property as above stated and while so, the first defendant, who had purchased a piece of land adjoining the right of way of the plaintiffs abovestated property, started leveling the same, with a view to put up a construction there during the second week of October 1987 and thereby encroached upon the right of way of the plaintiffs as above stated and in this connection, the plaintiffs have preferred the complaints to the Collector and the other authorities concerned and the said authorities had not taken necessary action against the defendants to prevent the illegal activities of the defendants, the defendants 2 and 3 who are the close relatives of the first defendant, proceeded with the abovesaid construction and blocked the right of way of the plaintiffs by put up revetments in the pathway and according to the plaintiffs, they had prescribed their right over the pathway on account of their continuous usage of the same and also the right of passage is required by the plaintiffs as an easement of necessity and the illegal construction put up by the defendants in the pathway hinders their right in using the same, hence, according to the plaintiffs, they had been necessitated to institute the suit against the defendants for appropriate reliefs – Held, Courts below had erred in granting the reliefs in favour of the plaintiffs based on Ex.A1 when it is found that the said document does not grant any right of pathway in the property acquired by the first defendant under Ex.B1. Similarly, the plaintiffs cannot be also granted any easementary right by way of necessity in respect of the alleged suit pathway as the ingredients of Section 13 of the Easement Act are not justified and moreso, when it is found that the plaintiffs have other access to reach the main road from their property. Merely because the plaintiffs had presented objections to the authorities concerned with reference to the construction put up by the defendants in their property, it cannot be construed that the plaintiffs have taken timely action against the defendants. When it is found that the plaintiffs have miserably failed to establish that any such pathway is in existence on ground on the eastern side of their property and any right as such had been legally granted to them by their vendor by way of Ex.A1, in such view of the matter, merely from the recitals found in Ex.A1, it cannot held that the vendor had granted the pathway right to the plaintiffs in respect of the property acquired by the first defendant under Ex.B1. Merely because the plan annexed to Ex.A1 also denotes the 6 ft pathway, it cannot be considered that the plaintiff as a matter of right is entitled to 6 ft pathway and as above noted the 6 ft pathway is only shown as the eastern boundary of the plaintiffs property and in such view of the matter, the claim of the plaintiffs that they have absolute right over the 6 ft pathway without establishing the existence and the right of usage of the same and also the conferment of any such right over the same under Ex.A1 by placing acceptable materials i.e., by examining their vendor or by taking out a commission etc., as above discussed and when no such right had been granted to the plaintiffs in respect of the property acquired by the first defendant under Ex.B1, it is found that the Courts below had erred in accepting the plaintiffs case without there being any acceptable and reliable material to sustain the same. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiffs and in favour of the first defendant – Second Appeal allowed
1. Challenge in this Second Appeal is made to the judgment and decree dated 30.12.2004 passed in A.S.No.33 of 2004 on file of the Subordinate Court, Nilgiris at Udhagamandalam confirming the judgment and decree dated 31.12.2003 passed in O.S.No.332 of 1987 on the file of the District Munsif Court Coonoor.
2. The parties are referred to as per the rankings in the trial court.
3. Suit for declaration and mandatory injunction.
4. The case of the plaintiffs in brief is that the first plaintiff purchased the land property described in the plaint schedule from one Mr.Stanley Cuthbert O' Reilley of Coonoor, by way of a registered sale deed dated 17.01.1972 together with the right of way admeasuring 6 ft in width running north-south on the eastern side of the property which connect the 10ft wide pathway to reach the 15 ft wide newly formed private road leading to Mount road of Coonoor Town without any obstruction or disturbance by any one. After purchase by the plaintiffs, the second plaintiff who is the husband of the first plaintiff, put up a dwelling house in the abovesaid land property and since the date of purchase and the house construction put up therein, the plaintiffs had been using the property as above stated and while so, the first defendant, who had purchased a piece of land adjoining the right of way of the plaintiffs abovestated property, started leveling the same, with a view to put up a construction there during the second week of October 1987 and thereby encroached upon the right of way of the plaintiffs as above stated and in this connection, the plaintiffs have preferred the complaints to the Collector and the other authorities concerned and the said authorities had not taken necessary action against the defendants to prevent the illegal activities of the defendants, the defendants 2 and 3 who are the close relatives of the first defendant, proceeded with the abovesaid construction and blocked the right of way of the plaintiffs by put up revetments in the pathway and according to the plaintiffs, they had prescribed their right over the pathway on account of their continuous usage of the same and also the right of passage is required by the plaintiffs as an easement of necessity and the illegal construction put up by the defendants in the pathway hinders their right in using the same, hence, according to the plaintiffs, they had been necessitated to institute the suit against the defendants for appropriate reliefs.
5. The case of the defendants in brief is that the suit laid by the plaintiffs is not maintainable either in law or on facts. The defendants are not aware of the purchase of the property by the plaintiffs with a right of way and the defendants are denying the plaintiffs' claim of right in having purchased the property with a right of way measuring 6 ft in width on the eastern side as put forth in the plaint. The plaintiffs in particular, have not purchased any right of way in the property owned and possessed by the first defendant and the first defendant had purchased her property in the year 1969 and in the said sale deed, there is no right disclosed of any right of way in favour of the plaintiffs and hence the plaintiffs cannot claim any right of way adjoining the defendants' property on any basis either absolute right or right by way of the prescription or right by way of easement of necessity and the defendants are not aware of the alleged complaints given to the authorities by the plaintiffs and the defendants are entitled to put up the construction in the property purchased by them and the same cannot be prevented by the plaintiffs. The alleged pathway has never been in existence and there is no right of way in existence in favour of the plaintiffs in the property belonging to the first defendant. The first defendant is not putting up any illegal construction in the alleged pathway as projected by the plaintiffs and hence the plaintiffs have no cause of action to lay the suit and hence the sui
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