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IN THE HIGH COURT OF MADRAS
N. Sathish Kumar, J.
D. Jeyabal - Appellants
Vs.
S. Chitra and Ors. - Respondent
S.A. No. 824 of 2011, M.P. No. 1 of 2011 and C.M.P. No. 21667 of 2017
Decided On : 26-04-2019
T.P. Act - Section 8 - declaration and Permanent Injunction - Trial Court - - Deed of Settlement enabling - In the above properties, the Plaintiff had purchased the Suit property and other lands from the said Subramani and his wife Alamelu and their minor children and the said Muthulakshmi through a registered Sale Deed, dated 9.5.1995. The Plaintiff is enjoying the Cart-track ever since the date of purchase to reach his land along with his Vendor. The Plaintiff has no other road except the Suit road to reach his lands. The Plaintiffs Vendor Muthulakshmi, her husband Shanmugam and the First Defendant joined together and created some documents for Suit Survey Number 12/1B. The Defendants have no right to cause disturbance to the Plaintiffs possession and enjoyment of the property. On 11.1.2004, the Defendants have illegally attempted to encroach a part of the Suit property to annex with their land to prevent the passage of the Plaintiff through the Suit property Cart-track. Hence, the Suit for Declaration to declare easementary right and consequential Injunction – Held, documents, especially Ex. A2, contains a clear recital that only a right of passage through the driveway was given to the Purchaser and the title to the land would vest to the Vendor. However, it was provided without ambiguity that the title holder, namely the Vendor under the Ex. A2-Sale Deed should use it only as a driveway and should not put up any obstruction or construction so as to hinder the use of the driveway. When Vendor has chosen to impose a restriction corresponding to a right of passage granted to the purchaser on the use of his property, then the Vendor cannot contend that the right of passage cannot be exercised over the entire breadth of 40 feet and that he can leave a space with a reasonable breadth so as to allow passage of vehicles and use the rest of the portion as he likes. Suppose the document is silent as to the width of the portion over which the right of passage has been granted and it simply recites a right of passage, such a contention of the Appellant/First Respondent may be tenable. The Sale Deed itself recites that the driveway of 40 feet over which the right of passage is granted. It has been proved not only by the documentary evidence but also by the oral evidence and in addition by the admission of DW1. Hence, there cannot be any abridgment or restriction of the right of passage by narrowing down the passage from 40 feet to a lesser width without the consent and concurrence of the Respondent herein/Plaintiff, who has got the grant not gratuitously, but for a price. Even in the absence of the production of Ex. A7, the First Respondent/Plaintiff shall be entitled to the relief of Permanent Injunction in respect of the driveway that has been referred to in Ex. A2. The Appellant/First Defendant has not disputed that there was no cause of action for the First Respondent/Plaintiff to file the Suit for Injunction. Admittedly, an attempt was made to cause obstruction by putting up construction leaving only a lesser space as an access to the rear portion of the Plaintiffs property and they had started laying a foundation. Therefore, the cause of action for the Suit has also been proved - Hence, this Court does not find any substance in the contention of the Appellant that the rejection of the contention of the Appellant regarding the admissibility of Ex. A7 was bad in law. Ex. A7 is a supporting document, which is also an original document signed by the Assistant Engineer - Appeal is allowed
JUDGMENT :
N. Sathish Kumar, J.
1. Aggrieved over the concurrent finding of the Courts below in dismissing the Suit filed for declaration and Permanent Injunction, the Second Appeal has been filed.
2. The parties are arrayed as per their own ranking before the Trial Court.
3. The brief facts of the Plaintiff case is as follows:
4. Denying that the Plaintiff has purchased the property, it is the contention of the Defendants that other than the Suit property, there is other Pathway to the Plaintiff and the Plaintiff has an alternative Pathway to reach his land. The alleged encroachment is also denied.
5. The Trial Court framed the following issues:
2. Whether the Plaintiff is entitled for Permanent Injunction?
3. Whether it is true that there is Cart-track as pleaded by the Defendants?
4. To what relief the Plaintiff is entitled?
6. In the Trial Court, on the side of the Plaintiffs PW1 was examined and Ex. A1 to Ex. A3 were marked. On the side of the Defendants, DW1 & DW2 were examined and Ex. B1 to Ex. B3 were marked.
7. The Trial Court has dismissed the Suit. The First Appellate Court confirmed the finding of the Trial Court. The First Appellate Court has appointed a Commissioner and taking note of the fact that after the CD portion shown in the Commissioner Report there is fence on the western side of the Plaintiffs land and concluded that there is no Pathway and also held that Plaintiff can reach his land through the Government lake. Hence, dismissed the Appeal. As against which, the present Second Appeal has been filed.
8. The following Substantial Question of Law have been formulated in this Second Appeal:
(ii) Whether the Courts below are correct in law in discarding Ex. A3-Sale Deed, dated 9.5.1995, without any justifiable reasons?
(iii) Whether the Court below are correct in law in ignoring the admissions made by DWs. 1 & 2, which would amply prove the case of the Appellant?
(iv) When the Appellant is entitled to the Suit Pathway both under Ex. A3-Sale Deed, dated 09.05.1995 and by way of Easement of necessity, whether the Courts below are correct in law in dismissing the Suit claim on flimsy grounds?
(v) Whether the Lower Appellate Co
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