The plaintiff failed to establish the easementary right and implied grant of easement, and the principle of Urban Servitude was considered in determining the plaintiff's claim.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code praying against the judgment and decree dated 01.06.2009 made in A.S.No.47 of 2008 on the file of the Sub Court, Dharapuram, partly confirming the judgment and decree dated 04.04.2008 made in O.S.No.488 of 2004 on the file of the District Munsif Court, Dharapuram.)

(The case has been heard through video conferencing)

1. The plaintiff is the appellant before this Court. The suit was filed seeking relief of declaration regarding right of easement and access to ‘B’ schedule property for maintaining the compound wall of the plaintiff morefully described as ‘A’ Schedule property. In addition to a relief of injunction to restrain the defendant and its agent from preventing the plaintiff from having access to ‘B’ Schedule property and mandatory injunction to remove the hallow block walls and the cement sheet roof which carries the rain water collected from the defendant’s property and let in to the plaintiff’s property was also sought. The Trial Court dismissed the suit in toto. On appeal, relief regarding mandatory injunction to remove the cement sheet roof alone was granted.

2. The plaintiff as the owner of the ‘A’ Schedule property claims that the southern side wall of his property has been maintained by entering through ‘B’ schedule property which is a lane of 2 to 2 ½ of feet width. South of the lane, defendant’s house is located. The ingress to the lane was obstructed by the defendant by putting up hallow bricks wall which has drived the plaintiff to file the suit for the relief stated above.

3. The defendant contested the suit on the ground that the property in possession of the plaintiff originally belongs to one Pannadi Iyan @ Palanisamy Gounder. The said property was encroached by the plaintiff and has constructed the house. Even before the plaintiff encroached the land, the defendant had put up construction and enjoying the property. The plaintiff have no right of easement over the ‘B’ schedule property and never given access for maintaining the wall. The cement sheet roof over the B schedule property was put by the defendant in the year 1980 itself, which is nearly six feet away from the southern side wall of the plaintiff and no rain water falls over the property of the plaintiff.

4. The trial Court has framed the following issues:-

(i). Whether the plaintiff is entitled to the relief sought for in the suit?

(ii). Whether the plaintiff or his ancestors have no easementary right over ‘B’ Schedule property as alleged by the defendant?

(iii). Whether the plaintiff is entitled to seek right over the ‘B’ Schedule property when the southern wall belonged to him put up without leaving any space bringness?

(iv). Whether the defendant is justified in claiming that the plaintiff have no access at any point of time and easementary right over the passage?

5. On the side of the plaintiff and the defendant two witnesses each were examined. 3 documents were marked in support of the plaintiff and 6 documents were marked in support of the defendant. The Advocate Commissioner appointed by the Court has submitted the report and sketch, which are marked as Ex.C.1 and Ex.C.2.

6. The trial Court after considering the evidence held that the plaintiff has not proved the easementary right to have access over the B Schedule lane for maintaining the southern side wall and dismissed the suit.

7. Aggrieved by that, the plaintiff has preferred the Appeal Suit before the Subordinate Court, Dharapuram.

8. The Learned Appellate Judge, on considering the evidence and the Advocate Commissioner’s report which has stated that the rain water collected on the cement sheet of the defendant falls on the wall and land of the plaintiff. Holding that the draining of rain water by slanting cement sheet roofing would certainly cause loss and inconvenience to the plaintiff and it to be averted by way of granting mandatory injunction, therefore granted a limited relief. While rejecting the plea o