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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N. MANJULA, J.
Thangaraj & Others – Appellant
Versus
Palani – Respondent
S.A. No. 309 of 2010
Decided On : 19-03-2021
Civil Procedure Code, 1908 – Section 100 – Partition – Declaration – Injunction – Second Appeal is filed under Section 100 of C.P.C, against the decree and judgment in A.S. on the file of the Sub Court, Harur and in reversing the judgment and decree in O.S. on the file of the District Munsif Court, Harur – Plaintiff and the defendants are the members of the joint family and they were enjoying the suit properties and other properties jointly. – They entered into a partition between themselves. As per the partition deed the respective parties took the possession of their respective shares and were enjoying of the same. – The plaintiff was allotted with the properties in Survey Number.78/2B (item No.1) and eastern half in survey – Plaintiff used to take water from the well in S.F.No.77/7 through the first defendants lands in S.F.No.78/2A and irrigated his suit lands in S.F.No.78/2B and he was also enjoying a pathway which measures 3ft x 190 ft and it was his easementary right. He has no other pathway to reach his lands in S.F.No.78/2B. – There is also a cart way of 14 ft x 190 ft, which runs across the S.F.No.78/2A. – These pathways are used by both the plaintiff and the defendants to reach their respective lands. – Apart from that there is an another pathway which runs in the middle of S.F.No.78/2A. – Both the plaintiff and the defendant have been using all these pathways for more than 30 years without any problem. – And all of a sudden defendants with an intention to cause hardship to the plaintiffs, obstructed the pathways and denied the easementary rights enjoyed by the plaintiffs. – Hence the suit has been filed by the plaintiffs for declaration and injunction.
Finding of court: Physical features of the suit property which was confirmed through the oral evidence of the plaintiff himself would show that the plaintiff does not have any easement of necessity for a pathway or a channel on the lands of the defendant in S.F.No.78/2A. – Trial Judge has correctly appreicated the documentary and oral evidence and arrived at a correct conclusion that the respondent/plaintiff did not prove his entitlement for easement of necessity. – But the learned first appellate Judge ignored the admissions in the evidence of the plaintiff and carried away with Ex.A6 muchalika alone. – Despite the defendant has executed and registered the sale Deed, it does not state anything about the easementary right. – But only Ex.A6, mucholika which is alleged to have been executed on the very next day states about the same. – The claim of the respondent/plaintiff in respect of item Nos.1 to 4 is not a right by agreement. – But as per the contention of the plaintiff in his plaint, it is an easement of necessity. – When the physical features of the suit property and the evidence of PW.1 shows that there is a well in S.F.No.78/2B itself and in which the plaintiff has fixed a pump set, there is no necessity for him to take water from the Porrambokku well in S.F.No.77/7. – When the panchayat road is running on the northern side of S.F.No.78/2B, the plaintiff cannot claim any easement of necessity on the defendants land. – Because he can have access to his lands through the said road. Only because of these reasons, the pathway right or the channel right (which is now claimed by the plaintiff as easements of necessity) did not find place in Ex.A1, partition Deed entered himself and his brother i.e. the appellant/1st defendant. – First appellate Judge without evaluating the whole evidence available on record placed its reliance only on Ex.A6 and decreed the suit. Since the plaintiff did not prove the easementary right by necessity, it is correct for the trial Court to dismiss the suit. – So the judgment of the first appellate Court which set aside the trial Court judgment is liable to be set-aside.
Result: Second Appeal Allowed
JUDGMENT :
(Prayer: Second Appeal is filed under Section 100 of C.P.C, against the decree and judgment in A.S.No.45/2008 on the file of the Sub Court, Harur and dated 29.12.2009 in reversing the judgment and decree in O.S.No.220/2003 on the file of the District Munsif Court, Harur and dated 21.02.2008.)
1. This second appeal has been preferred against the judgment and decree passed in A.S.No.45/2008 on the file of the Sub Court, Harur and dated 29.12.2009 in reversing the judgment and decree in O.S.No.220/2003 on the file of the District Munsif Court, Harur and dated 21.02.2008.
2. The Appellants in the second appeal are the defendants.
3. The short fact of the plaintiff case is as under:
The plaintiff and the defendants are the members of the joint family and they were enjoying the suit properties and other properties jointly. On 07.09.1975 they entered into a partition between themselves. As per the partition deed the respective parties took the possession of their respective shares and were enjoying of the same. The plaintiff was allotted with the properties in Survey Number.78/2B (item No.1) and eastern half in survey No.77/7. The plaintiff used to take water from the well in S.F.No.77/7 through the first defendants lands in S.F.No.78/2A and irrigated his suit lands in S.F.No.78/2B and he was also enjoying a pathway which measures 3ft x 190 ft and it was his easementary right. He has no other pathway to reach his lands in S.F.No.78/2B. There is also a cart way of 14 ft x 190 ft, which runs across the S.F.No.78/2A. These pathways are used by both the plaintiff and the defendants to reach their respective lands. Apart from that there is an another pathway which runs in the middle of S.F.No.78/2A. Both the plaintiff and the defendant have been using all these pathways for more than 30 years without any problem. And all of a sudden on 10.10.2003, the defendants with an intention to cause hardship to the plaintiffs, obstructed the pathways and denied the easementary rights enjoyed by the plaintiffs. Hence the suit has been filed by the plaintiffs for declaration and injunction.
4. The written statement of the defendant in brief is as under:
The suit of the plaintiff is not maintainable and he does not have any easement of necessity as alleged. The allegation of the plaintiff that he was enjoying the pathway and he has channel right in the suit property is false. The plaintiff has got a well in Survey No.78/2B and with the water from that well alone he irrigates his lands in survey No.78/2B. The defendant has laid a separate pipe line through well in porombokke land and he takes water from that well and also from a well in survey No.78/2A to irrigate his lands. Both the plaintiff and the defendant were irrigating their lands by using the water from the well situated in their respective portions. The plaintiff is using the well in survey No.77/7 for irrigating the portion of the land in survey No.77/7 over which he is in enjoyment.
4.1. The plaintiff can reach the riverbed which has on the southern side of survey No.78/2, by passing through his own land and further he can have an access to his land from the panchayat road running on the northern side. In the partition deed there is no mention about the pathway, despite the lands in survey No.78/2 was divided into two portions (as survey Nos. 78/2A and 78/2B) and allotted to the shares of the defendant and the plaintiff respectively. There is no cause of action for the suit. Hence the suit has to be dismissed.
5. On the side of the plaintiff two witnesses have been examined as PW1 and PW2 and Ex.A1 to A6 were marked. On the side of the defendant one witness has been examined as D.W.1 and Ex.B1 to B3 were marked. The report of the Commissioner has been marked as Ex.C1 and C2.
6. After trial, the trial Court has dismissed the suit. The plaintiff filed the first appeal before the Sub Court, Hurur. The first appellate Court set aside the judgment and decree of the trial Court and decreed the su
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