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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.PONGIAPPAN, J.
K.Thangavel - Appellant
Vs.
A.Manickam - Respondent
S.A.No.5 of 2010 & M.P.No.1 of 2010
Decided On : 24-11-2021
Code of Civil Procedure,1908 - Section 100 - Indian Evidence Act - Section 101 to 103 - Indian Easements Act, - Section 28 – Suit For - Pathway relief of injunction - Plaintiff has filed a suit before learned District seeking relief of permanent injunction restraining defendant and their supporters from any way preventing or disturbing plaintiff from laying pipeline in suit schedule property - Whether first appellate Court is right in law in holding that suit cart track is a “common property” for both parties herein even though there is no legal evidence to arrive such finding - Whether first appellate court is right in fixing burden of proof on defendant particularly when plaintiff has not discharged his initial burden of proof under Section 101 to 103 of Indian Evidence Act – Held, Plaintiff and defendant is that defendant had not permitted plaintiff to lay pipeline - In otherwise he had not raised any objection to use said cart track for ingress and egress of suit land - Defendant has raised an objection before laying pipeline it is not a case to decide whether laying of pipeline is necessary or not and accordingly question of mandatory injunction does not arise - Absence of any material to show that plaintiff is having right to install pipeline in suit pathway relief of injunction cannot be granted - the plaintiff is that as he was provided with the right to use the disputed pathway for reaching his land and accordingly, he is also having right to lay pipeline - Infact said claim is against Section 28 of Indian Easements Act. Court go by Section, it is possible to hold that plaintiff in instant case would not be entitled to take water line drainage line and over-head electric line over suit pathway - An easement of necessity is co-extensive with necessity as it existed when easement was imposed - Extent of any other easement and mode of its enjoyment must be fixed with reference to probable intention of parties and purpose for which rights were imposed or acquired - In absence of evidence as to such intention and purpose (a) A right of way of any one kind does not include a right of way of any other kind - Second Appeal allowed.
JUDGMENT :
Prayer:- This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 29.06.2009 passed in A.S.No.147 of 2008 on the file of the Subordinate Court, Tiruchengode, reversing the judgment and decree dated 29.01.2008 passed in O.S.No.290 of 2002 on the file of the District Munsif Court, Tiruchengode.
The present Second Appeal is directed against the judgment and decree dated 29.06.2009 passed in A.S.No.147 of 2008 on the file of the Subordinate Court, Thiruchengode, reversing the judgment and decree dated 29.01.2008 passed in O.S.No.290 of 2002 on the file of the District Munsif Court, Tiruchengode.
2. The respondent/plaintiff has filed a suit before the learned District Munsif, Tiruchencode in O.S.No.290 of 2002, seeking the relief of permanent injunction restraining defendant and their supporters from any way preventing or disturbing the plaintiff from laying the pipeline in the suit schedule property.
3. The learned District Munsif, Tiruchengode, by judgment and decree dated 29.01.2008 dismissed the suit, against which, the plaintiff/respondent preferred an appeal in A.S.No.147 of 2008 on the file of the Sub Court, Tiruchencode, praying to set aside the judgment and decree dated 29.01.2008, passed by the learned District Munsif, Tiruchengode in O.S.No.290 of 2002.
4. By judgment and decree dated 29.06.2009, the learned Subordinate Judge, Tiruchencode, allowed the appeal filed in A.S.No.147 of 2008 and granted the decree in favour of the plaintiff. Feeling aggrieved over the same, the defendant is before this Court with the present Second Appeal.
5. For the sake of convenience, hereinafter, the appellant is called as 'defendant' and the respondent is called as 'plaintiff'.
6. The laconic averments made in the plaint, are as follows:
(ii) The plaintiff is having a well in S.No.1/2 wherein he installed a 10 HP electric motor pumpset vide S.C.No.795. From the said well he proposed to take water to the land comprised in S.No.131/2 by putting a underground pipeline in the pathway, which is situated in S.No.1/2 of Chikkanaikkanpalayam Panchayat and through another one pathway situated in S.No.137.
(iii) The plaintiff have acquired a easement right of pathway and right to lay underground pipeline in S.No.137 by virtue of a registered document dated 31.08.2000. The defendant is having land in S.No.1/2 on the southern side of the plaintiff's field. There is a common pathway to the width of 10 feet running on the eastern side of the plaintiff's land as well as in the defendant's lands. The said 10 feet width common pathway is running upto Chikkanaickanpalayam Panchayat Road. The laying of pipeline by the plaintiff is no way giving disturbance or trouble to the defendant.
(iv) On 03.11.2002, the defendant and his supporters tried to disturb the plaintiff from laying the pipeline and the same was managed by him with great difficulty. Now the defendant is proclaiming as if he will not allow the plaintiff to lay the pipeline or enjoy the suit pipeline peacefully in future. Therefore, it is necessary to grant an order of injunction as prayed for by the plaintiff. Hence, the suit.
7. The case of the defendants, is as follows:
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