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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Pongiappan, J.
Periyana Gounder (Died) & Others – Appellants
Versus
Kumarasamy & Others – Respondents
S.A. No. 449 of 2010 & M.P. No. 1 of 2011
Decided On : 24-11-2021
Civil Procedure Code, 1908 - Section 100 - Suit cart track - Sale Deed - Decreed – Second Appeal - Whether finding of Courts below that appellants / plaintiffs do not have a right to use suit cart track as a common cart track is perverse - Whether Courts below have committed an error in law in holding that suit is bad for non-joinder of necessary parties as owners of land abutting suit cart track have not been made parties to suit – First plaintiff’s father and second plaintiff’s father are brothers, they purchased an agricultural lands under Sale Deeds - Similarly, third plaintiff’s father purchased land under Sale Deed, further case of plaintiffs that, ever since from date of purchase, they used suit cart track for ingress and egress their respective lands and also, they used suit cart track to take cattle etc. to their respective property – Held, The report filed by learned Advocate Commissioner narrates fact that on Southern side of suit cart track, defendants are having land and on other hand, on the Northern side of suit cart track, plaintiffs are having land. Further, on either side of cart track, there were coconut trees in row, which are all having age nearly around 25 years. Therefore, same probabilise fact that, suit cart track was in existence for past 25 years - Since forefathers purchased property in year 1926, it should be presumed that, plaintiffs used suit cart track from date of purchase. Further, in respect to Report filed by learned Advocate Commissioner, defendants had not filed any objection. Though defendants filed petition to appoint another Advocate Commissioner, same was not entertained by trial Court and against which, defendants did not take any Revision before this Court - It is a settled law having alternative way is no bar for claiming a right by way of easement by prescription. In fact, due to use of suit cart track by plaintiffs may be aggrieved persons, in otherwise, defendants are not an aggrieved person, due to reason that, defendants land are situated on Southern side of suit cart track, it cannot be said that, using the suit cart track by the plaintiffs would affect defendants enjoyment - Findings rendered by Courts below are nothing but perverse - Second Appeal is allowed
JUDGMENT :
(Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 14.09.2009 made in A.S.No.48 of 2009 on the file of the learned I Additional Subordinate Judge, Erode, confirming the judgment and decree dated 30.06.2009 made in O.S.No.353 of 2007 on the file of the learned Principal District Munsif, Erode.)
1. Aggrieved over the concurrent findings made in A.S.No.48 of 2009 dated 14.09.2009 on the file of the learned I Additional Subordinate Judge, Erode and in O.S.No.353 of 2007 dated 30.06.2009 on the file of the learned Principal District Munsif, Erode, the appellants, who are the plaintiffs in the above referred suit, have preferred this Second Appeal, praying to set aside the findings rendered by the Court below.
2. For the sake of convenience, hereinafter, the parties, are referred to, as per their litigative status before the trial Court.
3. The case of the plaintiffs, is as follows:
(ii) The common suit cart track in the rough plan at points A-B detached and run towards East. The common suit cart track shadowed in red colour, which runs about 500 feet from the point A-B to the point C&D, the suit cart track runs further East upto point E&F as shown in the rough plan. The plaintiffs land is situated North of the suit cart track from the point C&D. Immediately North of the suit cart track, at point ‘W’ as shown in the rough plan, the plaintiffs’ well is situated. South of the well, there was a North-South pathway to reach the plaintiffs’ land. TNEB Electric Transformer is situated in the lands belongs to the first defendant and in either side of the said Transformer, there was Electric Post at the distance of 50 feet in East and West. The Transformer was marked as T, in the rough plan and both the Electric Post were marked as P1, P2. Immediately, West of the P1 Electric Post, there was a cart track towards South at point K-L. The width of suit common cart track is 18 feet from A, B to C-D and CD to EF the width of the suit cart track about 15 feet.
(iii) On either side of the suit cart track i.e. on Southern side and Northern side, there are about 80 coconut trees in the height of 25 feet. The suit cart track is situated in between two rows of the coconut trees. The age of the coconut trees would be about more than 30 years old.
(iv) The first defendant is owning land immediately on the South of the cart track from the point P1 upto point E-F. He has raised plantain trees near the Transformer “T”. Further, East of it, he has raised sugarcane crops, which is about two months old. On the South of the first defendant’s land, defendants 2 and 3 are owning lands. The defendants 2 and 3 are father and son respectively. They have put up a Thondupatti in Western portion of their land for tethering cattle. For reaching the said Thondupatti, there is a cart track from the point K-L. The defendants 2 and 3 raised sugarcane crops immediately East of their Thondupatti.
(v) When at the time, the third plaintiff while driving his tractor in suit cart track, on 07.05.2007, the defendants along with their henchmen attempted to prevent the third plaintiff from taking his tractor in the suit cart track and also proclaimed except the defendants, the plaintiffs have no right to
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