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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. VIJAYAKUMAR, J.
Ayyasami & Another - Appellant
Versus
Periyasami (late) & Others - Respondent
S.A.(MD). No. 5 of 2019 & CMP(MD). No. 204 of 2019
Decided On : 15-02-2022
Criminal Procedure Code,1973 - Section 100 - Sale deeds - Declaration and permanent injunction - Alleged cart track does not run through their private patta land western boundary of the property purchased by them under Exhibit A2 indicates that there is a cart track - Defendants contended that no cart track runs through their private patta land - Alleged suit cart track, properties of plaintiffs are located - Defendants' properties are located on eastern side of the suit cart track Commissioner also found that suit cart track does alleged cart track and where cart track ends - Alleged cart track does not run through the Survey perusal of commissioner's plan would indicate that plaintiffs' case in plaint has been falsified by commissioner's report - Plaintiffs have identified some portions of the properties as a cart track and requested Advocate Commissioner to note down the physical features - Advocate Commissioner has not considered the sale deed of defendants or records - Plaintiffs contended that villagers of Mankulam have to use only this cart track to reach four other villages - tractors and agricultural products are being taken only through suit pathway - Plaintiffs further contended that suit pathway is in existence on the north as well as southern side - Plaintiffs further contended that they have been enjoying said cart track for more than statutory period - Plaintiffs further contended that defendants are having agricultural properties just east of cart track and they attempted to fence cart track also along with their property – Held, Plaintiffs have not even produced their own sale deeds to establish existence of a cart track on their eastern side. Hence, the First Appellate Court was not right in holding that parties on either side of cart track have given up some portions of their properties to create a cart track - Findings of First Appellate Court that the claim of plaintiffs can be construed to be an easement by grant is also not sustainable in law - Plaintiffs have not produced any document to show the existence of a cart track in any one of the properties leave alone plaintiffs' property - Appellate Court has relied upon many Hon'ble Supreme Court judgments to arrive at a finding that an easement by grant can even be implied and need not be expressed - There are no document in present suit even to arrive at a finding that there is an implied grant - Plaintiffs have pleaded easement by necessity, easement by grant and also the easement by prescription - It is settled position of law, each type of easement requires different pleadings - Plaintiffs attempted to claim a cart track in the suit survey numbers based on three different types of easementary rights, but they are unsuccessful in proving any one of them - second appeal is allowed.
This is a second appeal under Section 100 CPC filed by defendants (Ayyasami & Another, appellants) against the judgment dated 21.08.2018 in A.S.No.15 of 2017 by the Subordinate Judge, Aruppukottai, which reversed the trial court's dismissal (O.S.No.296/2012, Principal District Munsif, Aruppukkottai dated 04.10.2016) of plaintiffs' suit for declaration of right to use a suit cart track (Survey Nos. 36,37,38,167,168; 650ft N-S x 15ft E-W) and permanent injunction against fencing by defendants. (!) [21001419860001][21001419860002]
Plaintiffs sued in representative capacity for villagers of Mankulam and individually, claiming the track as public pathway connecting residences/agricultural lands to other villages, used for cattle/tractors/products for statutory period (>200yrs), with eastern boundaries in their deeds showing the track; defendants east of track attempted fencing.[21001419860003][21001419860004]
Defendants denied track through their patta lands (S.Nos.167/168), asserted it lies west per their Ex.A2 sale deed; accused plaintiffs of encroaching west track and claiming into their land; suit not representative.[21001419860005]
Advocate Commissioner report (per IA 308/2012) found track west of plaintiffs' properties/east of defendants'; passes through S.No.38,167,168 (not 36/37); defendants objected re start/end points.[21001419860006]
Trial court dismissed suit: plaint survey nos erroneous (unamended post-report); no proof of public track (no govt docs/settlement records); PW1-3/DW1 evidence weak; no easement pleaded/proved (no continuous use/docs); Exs.B1-B3/A1-A3 no track in 167/168; adverse inference vs plaintiffs' non-production of deeds.[21001419860007][21001419860008][21001419860009]
First Appellate Court allowed appeal/decreed suit: absence of revenue records irrelevant for easement; oral evidence proved immemorial use (>500yrs); locals examined; parties both sides gave up land for track (easement by grant, implied); no alt path needed; defendants can't reclaim/fence.[21001419860010] (!) (!) (!) (!) (!) (!) [21001419860011]
Substantial questions of law: (i) erroneous plaint description unamended, inexecutable decree; (ii) no proof/existence per records/maps; (iii) reliance on unexamined Commissioner's report despite objections.[21001419860012] (!) (!)
Appellants argued: inconsistent claims (public/common); Commission falsified plaint; no plaintiffs' deeds/boundary recitals; vague easement pleadings (grant/necessity/prescription unproved); west track per Ex.A2/A3; no villagers/deeds for 500yrs claim; Appellate Court erred sans pleadings/docs on grant.[21001419860013][21001419860014][21001419860015][21001419860016]
High Court allowed appeal/set aside Appellate decree/restored trial court: burden on plaintiffs unmet; Commissioner confirmed no track in 36/37, in defendants' 167/168; no govt/private docs (Exs.A1-A5/B1-B3 no track); Ex.A2/A3 show west track; no plaintiffs'/villagers' deeds despite boundary claim; PW2 (VAO)/PW3 admissions negate; no prescription proof (no docs/use evidence, esp 15ft/200yrs); no easement pleadings/proof per type; Appellate erred on unpleaded/implied grant sans docs; questions answered against Appellate.[21001419860017][21001419860018][21001419860019][21001419860020][21001419860021][21001419860022][21001419860023][21001419860024][21001419860025][21001419860026][21001419860027][21001419860028][21001419860029][21001419860030][21001419860031] (!) (!) [21001419860032]
JUDGMENT :
Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 21.08.2018 passed in A.S.No.15 of 2017 on the file of the Subordinate Judge, Aruppukkkottai reversing the judgment and decree dated 04.10.2016 passed in O.S.No. 296 of 2012 on the file of the Principal District Munsif Court, Aruppukkottai.
1. The defendants are the appellants.
2. The plaintiffs filed O.S.No.296 of 2012 before the Principal District Munsif Court, Aruppukkottai for declaration that the plaintiffs are entitled to use the suit cart track and for permanent injunction restraining the defendants from any way fencing the said cart track.
3. The suit was dismissed by the trial Court. The plaintiffs filed A.S.No.15 of 2017 before the Subordinate Court, Aruppukkottai. The learned Subordinate Judge was pleased to allow the appeal and decreed the suit as prayed for. As against the same, the present second appeal has been filed by the defendants.
4. The plaintiffs have filed the suit in their representative capacity on behalf of the villagers of Mankulam Village and also in their individual capacity. The plaintiffs had contended that the suit schedule property is a public pathway, it falls within Survey Nos. 36, 37, 38 and Survey Nos.167 and 168 running in the north-south direction with north -south measurement of 650 feet and east-west measurement of 15 feet. The plaintiffs further contended that this is the only cart track available to connect the residential houses on the southern side and the agricultural lands located on the northern side of the village. The plaintiffs further contended that the villagers of Mankulam have to use only this cart track to reach the four other villages.
5. According to the plaintiffs, the cattle, tractors and agricultural products are being taken only through the suit pathway. The plaintiffs further contended that the suit pathway is in existence on the north as well as the southern side. The plaintiffs further contended that they have been enjoying the said cart track for more than the statutory period. The plaintiffs further contended that the defendants are having agricultural properties just east of the cart track and they attempted to fence the cart track also along with their property. The plaintiffs further contended that on the western side of the cart track, so many villagers are having registered sale deeds in which the eastern boundary is shown as the cart track. Hence, they prayed for declaration and permanent injunction.
6. The defendants filed a written statement contending that the alleged cart track does not run through their private patta land namely Survey Nos.167 and 168. They further contended that the western boundary of the property purchased by them under Exhibit A2 indicates that there is a cart track. Hence, the defendants contended that no cart track runs through their private patta land. The defendants further contended that they have not encroached upon any public property much less a public cart track. The defendants further contended that the plaintiffs are having the properties to the west of the cart track and they have annexed the cart track to their own property. After annexing the cart track with their own property, now, they are attempting to create a new cart track into the private patta land of the defendants. The defendants further contended that they are entitled to fence their own private patta land and the plaintiffs cannot raise any objection to the said fencing. The defendants further contended that the plaintiffs are not the representative of the villagers and the present suit has been filed only with a personal motive by the plaintiffs in their individual capacity in order to grab the property of the defendants. Hence, they prayed for dismissal of the suit.
7. Pending suit, at the instance of the plaintiffs, An Advocate Commissioner was appointed In I.A.No.308 of 2012. He filed a report and plan. As per the said report, the commissioner found tha
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