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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. Ilanthiraiyan, J.
Raja - Appellant
Versus
Vedi Raj (Died) & Others - Respondent
S.A. No. 1391 of 2001 & C.M.P. No. 14972 of 2002
Decided On : 03-01-2020
Civil Procedure Code, 1908 - Section 100 - Rule 31 - Order XXXXI - Suit property and also for permanent injunction - Owners of land situated in west and south of land - Defendants are owners of land situated in west and south of land comprised in Survey south of defendant’s land there is road - From road plaintiff passes through land comprised in Survey belonging to defendants to reach his property comprised in Survey - Even before sale first defendant and his brother were going through property comprised in Survey to reach property comprised in Survey - Except this passage no other way to reach land - Passage has been used from time immemorial - Right of passage is an absolute necessity – Held, According to plaintiff he claimed easementary right pursuant to schedule property mentioning in plaint purchased by plaintiff from Minimal - Reveals that property ad measuring cents out of acres comprised in Survey along with easementary right of drawing water from common well comprised in Survey and post of picots bucket and water channel to draw water and to reach land comprised in Survey - But plaintiff filed suit for easementary right of pathway - It is found that in as above stated no easementary right granted to plaintiff as claimed by plaintiff - In fact in commissioner report was marked as ridge and it was not mentioned as pathway and it is situated in land belonging to defendants - In Survey on eastern side of defendants land there was pathway which was starting from main Road and it reaches plaintiff’s land comprised in Survey - Therefore plaintiff cannot claim easementary right on strength of rough sketch easementary of necessity is not to be granted on ground of convenience and consistence but solely on ground of easementary of necessity - When there are other way to ingress and egresseasement of necessity cannot be claimed merely on ground that other ways are inconvenient - Further right of way as easement of necessity implies that there is no other means of access however inconvenient - When dominant tenement cannot be enjoyed without imposing a burden on servant tenement then question of easementary does not arise - It is revealed very clearly from that there was an alternative pathway to reach land belongs to plaintiff comprised in Survey - As such plaintiff is not entitled for easementary right over property as claimed by him - Therefore this Court does not find any reason to interfere with findings rendered by Courts below - Therefore this Court is of considered opinion that no substantial question of law involved in this appeal - Be that as it may - All substantial questions of law formulated by this Court in this Second Appeal are answered in favor of defendants and as against plaintiff – Appeal dismissed
JUDGMENT :
Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 20.03.2000 made in A.S.No.116 of 1998 on the file of the Additional District Court, Thiruvannamalai, confirming the judgment and decree dated 17.08.1998 made in O.S.No.755of 1985 on the file of the Principal District Munsif Court, Thiruvannamalai.
1. This second appeal has been preferred as against the judgment and decree dated 20.03.2000 made in A.S.No.116 of 1998 on the file of the Additional District Court, Thiruvannamalai, confirming the judgment and decree dated 17.08.1998 made in O.S.No.755 of 1985 on the file of the Principal District Munsif Court, Tiruvannamalai.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
3. The case of the plaintiff in brief is as follows:-
3.2. The defendants are the owners of the land situated in the west and south of the land comprised in Survey No. 452/9 and to the south of the defendant’s land there is a road. From the road, the plaintiff passes through the land comprised in Survey No.471/6A, belonging to the defendants to reach his property comprised in Survey No. 452/9. In fact, even before the sale the first defendant and his brother Povathai Gounder were going through the property comprised in Survey No.471/6A to reach the property comprised in Survey No. 452/9. Except this passage, no other way to reach the land. The passage has been used from time immemorial. The right of passage is an absolute necessity.
3.3. Though the plaintiff and his predecessors had an easement title over the suit property and the plaintiff had the easement right over the suit property and he had also prescribed such as easement of way over the suit property. In fact, the land in survey No. 452/9 is entitled to draw water from the well comprised in Survey No. 471/6A. There is a channel to draw water to the property comprised in Survey No. 452/9. The rough plan enclosed along with the plaint to show the existence of the path way in the land comprised in Survey No.471/6A, which is marked as A & B in the plan annexed with the plaint.
3.4. While being so, the sons of the defendants are attempted to dispute the plaintiff’s title to the land ad measuring 1.26 acres through an advocate notice dated 09.02.1979 and it was replied by the plaintiff on 15.02.1979. Due to misunderstanding between the plaintiff and the defendants, the defendants obstructing the plaintiff to reach the land by passing through the suit schedule property. Hence the suit.
4. Resisting the same the first def
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