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2019 Supreme(Mad) 705
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Moulasa - Appellant
Versus
S. Saratha & Another - Respondent
S.A. No. 333 of 2007
Decided On : 12-04-2019
Advocate Appeared:
For the Appellant :S. Ilamparthi, Advocate.
For the Respondents:S. Sounthar, Advocate.
The central legal point established in the judgment is the entitlement of the plaintiff to claim easementary right over the suit property based on principles of prescription and necessity.
Headnote:
Easementary Right - Property Dispute - Civil Procedure Code - Section 100 - O.S.No. 560 of 1998, A.S.No.113 of 2004 - The court discussed the legal provisions related to easementary rights and the entitlement of the plaintiff to use the suit property as a pathway. The court emphasized the principles of prescription and necessity in determining the plaintiff's right of easement over the suit property.
Fact of the Case:
The plaintiff filed a suit against the defendants claiming easementary rights over a pathway to reach her property. The trial court granted the reliefs in favor of the plaintiff, which was confirmed by the first appellate court. The second defendant filed a second appeal challenging the decision.
Finding of the Court:
The courts below correctly determined that the plaintiff has prescribed right of easement over the suit property and entitled to obtain the reliefs. The first appellate court's finding that the plaintiff has alternative access to her property was not sustained as the alternative access was at the pleasure of another party.
Issues: The main issue was the entitlement of the plaintiff to claim easementary right over the suit property and whether she had alternative access to her property.
Ratio Decidendi: The court held that the plaintiff had prescribed her right of easement over the suit property for gaining ingress and egress to her property. The determination was based on the appreciation of factual materials available on record.
Final Decision: The second appeal was found to be devoid of merits and dismissed with costs. The judgment and decree of the courts below granting the appropriate reliefs in favor of the plaintiff were upheld.
(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 30.06.2005 on the file of the Principal Subordinate Judge, Mayiladuthurai made in A.S.No.113 of 2004 confirming the judgment and decree of the Additional District Munsif Court, Mayiladuthurai, made in O.S.No. 560 of 1998 dated 03.04.2003.)
1. In this second appeal, challenge is made to the judgment and decree dated 30.06.2005 passed in A.S.No.113 of 2004 on the file of the Principal Subordinate Court, Mayiladuthurai, confirming the judgment and decree dated 03.04.2003 passed in O.S.No. 560 of 1998 on the file the Additional District Munsif Court, Mayiladuthurai.
2. The second defendant, who has lost in both the courts, has come forward with the present second appeal.
3. It is found that the plaintiff has laid the suit against the defendants 1 and 2 claiming the reliefs of declaration, permanent injunction and mandatory injunction in respect of the suit property contending the same is a pathway measuring 4 feet north-south and 50 feet east-west and to the east of the same, the property comprised in R.S.No.57/1 is lying and owned by Haj Mohamed, son of Yacuf Rowthar and that the abovesaid property lying in R.S.No.57/1 had been taken on lease by the plaintiff's husband Subbaiyan and Subbaiyan was cultivating crops in the abovesaid property and it is stated that, even prior to the same, the suit property has been the way for gaining access to R.S.No.57/1 and accordingly, after the lease also, the plaintiff's husband has been using the suit property as the way for reaching R.S.No.57/1 and it is further stated that the plaintiff entered into an agreement of sale with the owner of R.S.No.57/1 to purchase the said property and accordingly paid a part of the sale consideration and in fact, it is stated that the plaintiff had paid the entire sale consideration and the same had been endorsed in the sale agreement and thus it is put forth that the plaintiff is put in the possession of the property in R.S.No.57/1 pursuant to the sale agreement and accordingly, using the suit property as an access to reach her property and accordingly, shown the suit property as ABCD in the plaint plan and putting forth the case that the defendants, without any entitlement, are attempting to restrict the plaintiff from using the suit property as an access to reach her property and hence it is stated that the plaintiff has been necessitated to lay the suit against the defendants for appropriate reliefs.
4. The defendants resisted the plaintiff's suit contending that there is no pathway in the suit property as put forth in the plaint and it is stated that the suit property lying in R.S.No.58/15-B and 58/16 is in the possession and enjoyment of the defendants and there is no dividing ridge between R.S.No.58/15B and 58/16 and contending that no one has got any right of access through the abovesaid properties and denied the case of the plaintiff that the suit property is the only access for the plaintiff to reach her property as put forth in the plaint and contended that the plaintiff cannot claim any easementary right over the suit property as projected in the plaint and therefore, the defendants sought for the dismissal of the plaintiff's suit.
5. In support of the plaintiff's case P.W.s.1 to 3 were examined and Exs.A1 to A5 were marked and on the side of the defendants D.Ws.1 and 2 were examined and no document has been marked. Exs.C1 and C2 were also marked.
6. On a perusal of the materials placed on record by the respective parties and, in particular, the commissioner's report and plan, the trial court was pleased to determine that the plaintiff has access to her property only through the suit property and accordingly held that the plaintiff has entitlement to use the suit property as a pathway, both by way of prescription as well as by way of necessity and accordingly granted the appropriate reliefs in favour of the plaintiff as prayed for and
