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IN THE HIGH COURT OF MADRAS
P.T. Asha, J.
Revathi - Appellant
Versus
Kathan - Respondent
S.A. No. 145 of 2013 and M.P. No. 1 of 2013
Decided On : 12-07-2019
Indian Easements Act - Section 15 - Indian Evidence Act - Section 63 and Section 65 - Hindu Undivided Family - Relief of easementary right – Permanent Injunction - Whether Court below has erred in granting relief of easementary right to respondent in schedule B property without sufficient proof on side of respondent to prove that he is owner of Schedule 'A' property - Whether Court below had has erred in not seeing that suit has laid is not maintainable when respondent himself had claimed that he is Kartha of Hindu Undivided Family - Whether suit is bad for non joinder of necessary parties - Whether respondent has established right of easement as required under Section 15 of Indian Easements Act - Whether Ex. A.5 is an admissible document and whether Section 63 and Section 65 of Indian Evidence Act have been follows – Held, There is no mention of the pathway turning to east after proceeding northwards. The pathway in issue is portion which runs West - Plaintiff has made his claim only on the basis of this document. Further the plaintiff has not chosen to make all parties to Ex. A.5 a party to suit hence suit is bad for non-joinder of necessary parties - Court opinion that the plaintiff has failed to prove his right to said pathway and Appellate court has also not applied its mind to evidence available on record to sustain its Judgment. No reason whatsoever has been given by Appellate Court as to why Judgment and Decree of Trial Court is set aside - Second Appeal is allowed
Key Points: - The court discusses that Ex. A.5 (Muchalika) is a compulsorily registrable document due to consideration and immovable property rights, affecting its admissibility (!) (!) (!) . - The trial court declined Ex. A.5 for being a Xerox copy and未 registered; appellate court’s reversal based on evidence issues and whether the plaintiff proved an easement right (!) (!) . - The judgment holds that the plaintiff failed to prove the right to the pathway and that the appellate court did not properly analyze the record; second appeal allowed; trial court’s decree upheld as set aside (!) . - The case deals with whether the suit is maintainable when the plaintiff claims Kartha status but did not establish necessary party status and ownership of Schedule A property (!) (!) . - The discussion references Indian Evidence Act Sections 63 and 65 and Registration Act Section 17 regarding admissibility and registration requirements for documents creating easement rights (!) (!) . - The final finding is that there is no proof of the right to the pathway; need for proper appraisal of witnesses and documents, and non-joinder of necessary parties undermines the suit (!) . - The judgment cites Subramanyam Chettiar v. Meyyammai Achi and Rakesh Mohindra v. Anita Beri regarding document admissibility and secondary evidence, reinforcing the need for registration and proper proof (!) (!) .
JUDGMENT :
P.T. Asha, J.
1. The defendant is the appellant before this Court. The Second Appeal arises against a reversing Judgment. The parties are referred to in the same litigative status as in the suit. The plaintiff had come forward with the suit O.S. 173 of 2005 on the file of the District Munsif, Mannargudi, for the following reliefs:
2. To grant a permanent injunction restraining the defendant her men and agent from in any way interfere with the peaceful enjoyment of the suit B Schedule property as pathway:
3. To award cost of this suit, and
4. To grant such other further reliefs as this Hon'ble Court may be deem for under the circumstances of this case in favour of the Plaintiff and thus render justice."
Schedule of Properties:
2. The property subject matter of the suit is a pathway described as 'B' schedule and marked as A, B, C and D in the plaint plan.
Plaintiff's Case:
3. It is the case of the plaintiff that the property in question belonged to his father one Krishnaswamy. On his death in the year 2002, the property devolved upon the plaintiff and his brother one Veeraiyan. The plaintiff would contend that he and his brother are enjoying the property jointly and that he has filed the suit as a manager of the Hindu Undivided Family. It is his case that for several decades they have been enjoying the access through the suit pathway to the main road.
4. While so, in the year 1992, there was dispute between the then owner of the suit survey field one Seetharaman and Murugaiyan Pullvarayar regarding the land and passage. The dispute ultimately resulted in a Muchalika being executed in the presence of the Panchayatars in the form of an Affirmation letter dated 30.03.1992. He would contend that this pathway was directed to be used by Krishnaswamy and Somasundaram for the purpose of digging waste and as Cart Track. The said Cart Track is now situate in Survey No. 237C-19. It was also his case that the said Somasundaram who is the vendor of the defendant had 'also signed in the said Muchalika. The specific case was that the original of the Muchalika (Affirmation letter) is on the hands of mediators and the plaintiff who holds a Xerox copy had also undertaken to produce the Will at the time of the Trial.
5. It is the further case of the plaintiff that after sale of the property by Somasundaram to the defendant, the defendant had started blocking the use of the pathway. In fact the document under which the property was sold to the defendant did not contain any reference to this cart track. The plaintiff would submit that the defendant cannot claim exclusive right to the B-Schedule property since the plaintiff also has a right over the same. It is also stated that the plaintiff does not have any alternative pathway. The plaintiff had therefore come forward to file the suit in view of the threat posed by the defendant to declare his easementary right over the pathway and for an injunction.
Defendant's Case:
6. The defendant filed her written statement inter alia denying the plaintiff's claim to the suit property. The defendant stated that the plaint plan filed along with plaint is a totally self serving and false document and the property does not exist as shown in the plaint plan. The defendant would also put forward the case that the plaintiff had an alternative pathway on the east and the entrance to his property is also only on the east. The defendant had further contended that at no point of time the suit property was being used as pathway. The defendant would submit that the plaintiff's case that they had an access directly from the main road to the property through pathway which is situate north of the property of Gopala Krishnan is false. The defendant would further contend that the suit is only a counter blast to the defendant refusal to sell their property to the plaintiff.
Trial Court:
7. The Trial Court,' namely, the District Munsif, 'Mannargudi had
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