1997 Supreme(Mad) 1573

MADRAS HIGH COURT
S.M. Abdul Wahab, J.
K. PICHAI MOHIDEEN – Appellant
Versus
M.K.M. ABDUL HAKKIM AND OTHERS – Respondent
S.A. No. 1081 of 1996
Decided on : 21-11-1997

A boundary description in a sale deed, showing a pathway as a boundary, creates a presumption of a grant of right of way over the pathway to the purchaser.

Headnote:

PATHWAY - EASEMENT - BOUNDARY DESCRIPTION - ADMISSIBILITY - OWNERSHIP - ALTERNATIVE PATHWAY - LIMITATION - WIDTH OF PATHWAY - INJUNCTION - DECREE MODIFICATION: 1. A boundary description in a sale deed, showing a pathway as a boundary, creates a presumption of a grant of right of way over the pathway to the purchaser. 2. The presumption is stronger when the pathway is stated as common to owners adjoining the pathway and not to the public at large. 3. Recitals as to boundaries in documents are admissible in evidence if the executant of the document is examined and explains the contents of the document. 4. A claim for a declaration that a pathway is a common property of the plaintiffs and defendants is not a claim for ownership in the pathway. 5. The absence of an alternative pathway is a relevant factor in determining the necessity for a right of way. 6. A delay in filing a suit for a right of way does not necessarily bar the suit, especially if the pathway is still vacant and there is no evidence of adverse possession. 7. The width of a pathway granted by a sale deed is determined by the description in the deed and not by the actual width of the pathway at the time of the suit. 8. A decree granting an injunction to protect a right of way should be limited to the width of the pathway as specified in the sale deed.

Fact of the Case:

The plaintiffs and the defendant were owners of adjacent properties. The plaintiffs claimed a right of way over a pathway running along the boundary of their properties, which they alleged was granted to them by a sale deed. The defendant, who purchased his property after the plaintiffs, denied the existence of the pathway and obstructed it. The plaintiffs filed three suits, one for a declaration of their right to the pathway and an injunction restraining the defendant from interfering with their use of it, and two for a declaration that the pathway was a common property of the plaintiffs and the defendant and an injunction restraining the defendant from interfering with their use of it.

Finding of the Court:

The trial court and the appellate court found that the plaintiffs had a right of way over the pathway, based on the description of the boundary in the sale deed and the evidence of the plaintiffs' witnesses. The courts also found that there was no alternative pathway for the plaintiffs to access their properties.

Issues: 1. Whether the boundary description in the sale deed created a presumption of a grant of right of way over the pathway to the plaintiffs? 2. Whether the recitals as to boundaries in the sale deed were admissible in evidence? 3. Whether the plaintiffs' claim was for ownership in the pathway? 4. Whether the absence of an alternative pathway was a relevant factor in determining the necessity for a right of way? 5. Whether the delay in filing the suit barred the plaintiffs' claim? 6. What was the width of the pathway granted by the sale deed?

Ratio Decidendi: 1. The court held that the boundary description in the sale deed, showing the pathway as a boundary, created a presumption of a grant of right of way over the pathway to the plaintiffs. The court relied on the principle that a person who owns a property adjoining a highway belonging to the Government or by the local bodies is entitled to have access to the Highway from each and every point of his property. 2. The court held that the recitals as to boundaries in the sale deed were admissible in evidence because the husband of the executant of the deed had been examined and had explained the contents of the document. 3. The court held that the plaintiffs' claim was not for ownership in the pathway, but for a declaration of their right to use it as a common pathway. 4. The court held that the absence of an alternative pathway was a relevant factor in determining the necessity for a right of way. 5. The court held that the delay in filing the suit did not bar the plaintiffs' claim, especially since the pathway was still vacant and there was no evidence of adverse possession. 6. The court held that the width of the pathway granted by the sale deed was 11 feet, based on the description in the deed and the evidence of the plaintiffs' witnesses.

Final Decision: The court dismissed the defendant's appeals and upheld the judgments and decrees of the courts below, with a modification to the decree in one of the suits to limit the width of the pathway to 11 feet.