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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Rmt.Teekaa Raman, J.
Parvathy - Appellant
Versus
Ponnusamy - Respondent
S.A.No.507 of 2011
Decided On : 06-01-2022
Easements Act, 1882 - Section 4 - Seeking relief of a Permanent Injunction - Whether Exs.A1 and A2 prove common ownership of plaintiff - Plaintiff has filed a suit seeking relief of a Permanent Injunction from obstructing plaintiff installing an Oil Engine in common well in Village amended as per order in I.A. and pumping out water through same in alternate days for irrigating her lands in Village and Interdicting the defendant and his men and family members by a pipeline underneath common path in to a depth of three feet crossing East West Panchayat road for carrying water from her family exclusive well to irrigate schedule lands - Suit was decreed and defendant has preferred A.S. before Sub-Court appeal was partly-allowed in respect of relief 'A' and dismissed in respect of relief and hence with regard to disallowed portion of rejection of 'B' relief in appeal appellant/plaintiff has preferred this Second Appeal – In the absence of any declaration declaring the joint owner or co-ownership of the vendor of the plaintiff, the plaintiff cannot claim a right as a co-owner. Para 25.
Finding of the Court:
lis between father of defendant and father of vendor of plaintiff goes to show that in respect of Survey where disputed pathway is situated and it gives only for access to land of plaintiff and it does not mentioned that it belong to him - It belongs to plaintiff and there is no whisper with regard to fact that it was belongs to her - What was recital therein is only with regard to taking of access to property which gives only right of access and vendor of plaintiff has instituted suit and which resulted in passing of a decree Ex.B2 and judgment Ex.A2 and decree Ex.B1 decree B2 which clearly shows that portion marked P, Q, R in Advocate Commissioner's Report gives that it is only for feet breadth to carry pathway and to have an access to property and defendant should not interfere with access.
Result: Second Appeal is Dismissed.
Certainly. Based on the provided legal document, here are the key points:
The plaintiff filed a suit seeking a permanent injunction to prevent the defendant from obstructing her efforts to install an oil engine in a common well, pump water for irrigation, and lay a pipeline underneath a common pathway for water transportation purposes (!) (!) .
The suit was initially decreed, but the defendant appealed, resulting in a partial allowance of relief 'A' and dismissal of relief 'B'. The plaintiff has filed a second appeal regarding the disallowed relief 'B' (!) .
The core issue was whether the plaintiff proved a joint ownership or co-ownership of the property, which would entitle her to certain rights, including laying pipelines underneath the pathway [a] (!) (!) .
The court examined the recitals in the relevant documents, especially Ex.A1, which indicated a "common right" over the property, but did not establish joint or co-ownership. The absence of a declaration of joint ownership meant that the plaintiff's rights were limited to easementary rights rather than full ownership rights (!) .
The court considered prior judgments and legal principles, emphasizing that rights to lay underground pipelines or drains are incidents of easements, provided they do not interfere with the rights of other co-owners or impose additional burdens beyond the scope of the original easement (!) (!) .
The court concluded that the plaintiff's right, as derived from the documents, was only to use the pathway for access, not to lay pipelines at a depth of 3 feet underneath it. The decision in the relevant case law supports that additional burdens, such as underground pipelines, cannot be imposed without clear evidence of joint ownership or explicit rights (!) (!) .
Since the plaintiff was not established as a co-owner and only had an easement, she was not entitled to the injunction sought for laying the pipeline underneath the pathway. The lower appellate court's decision was affirmed, and the second appeal was dismissed (!) .
The judgment underscores the importance of clear documentation and declarations of ownership or co-ownership to establish rights beyond easements, especially when it involves laying underground infrastructure that could burden the servient tenement (!) (!) .
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JUDGMENT :
The plaintiff is the appellant herein.
2. The plaintiff has filed a suit in O.S.No.13/2001 seeking the relief of (i) a Permanent Injunction from obstructing the plaintiff installing an Oil Engine in the common well in S.No.127/2B of Ariyur Village amended as per order in I.A.No.62 of 2002 dated 22.01.2002 and pumping out water through the same in alternate days for irrigating her lands in S.Nos.126/1B and 127/2C in Ariyur Village and (ii) Interdicting the defendant and his men and family members by a pipeline underneath the common path in S.No.127/2B to a depth of three feet crossing East West Panchayat road for carrying water from her family exclusive well to irrigate the schedule lands.
3. The suit was decreed and the defendant has preferred A.S.No.31/2006 before the Sub-Court, Namakkal, wherein, the appeal was partly-allowed in respect of relief No.'A' and dismissed in respect of relief No.'B' and hence, with regard to the disallowed portion of rejection of 'B' relief in the appeal, the appellant/plaintiff has preferred this Second Appeal.
4. For the sake of convenience the parties are referred as per their ranking before the lower Court.
5. In the above Second Appeal, initially, notice of motion was ordered on 25.04.2011 and thereafter, the appeal was admitted on 25.09.2020 and the following Substantial Questions of Law were framed.
(b) Whether the construction of Ex.A1 by the Lower Appellate Court is erroneous and contrary to the tenor of the documents?
6. The learned counsel for the appellant/plaintiff contended that both the Courts below have concurred and granted relief 'A' as sought for in the plaint, however, refused the relief 'B' and relied upon Ex.A1 that a common right of the plaintiff over the suit property in Survey No.127/2B and therefore, the constructions of the recitals of the document in Ex.A1 by the lower Appellate Court is erroneous and also the learned counsel would draw my attention to the word used in Ex.A1 "IMAGE" (in common).
7. Per contra, the learned counsel for the respondent/defendant contended that both the Courts below have concurrently granted the relief of 'A' to the plaintiff, however, specifically rejected the relief of 'B' stating that the defendant cannot be added with additional burden in respect of common pathway so as to enable the plaintiff to lay a pipeline 3 feet underneath the common pathway and made submissions in support of the judgment of the lower Appellate Court.
8. On a perusal of records, it appears that both the Courts below, on appreciation of the evidence of Exs.A1, Ex.A2 and Ex.B1, have granted the relief of 'A' as sought for by the plaintiff and rejected the second relief of 'B', as extracted supra viz., permanent injunction against the defendant from obstructing the plaintiff laying a pipeline underneath the common pathway in S.No.127/2B at the depth of 3 feet crossing East to West Panchayat road to take water from her family exclusive well for irrigating the schedule lands. An Advocate Commissioner has also been appointed and his reports were marked as Exs.C1 and C2.
9. On perusal of Ex.A1 shows that the plaintiff has a common right over the suit property in No.127/2B. The plaintiff has given the right to her men, cattle and vehicle etc and such a right is to both the co-owners.
10. As pointed out, a word "common right" is given under Ex.A1 and it was mentioned as (in common) and hence, taking into consideration the document Ex.A1, A2 and Ex.B1, both the Courts below have rightly come to the conclusion that the appellant/plaintiff had a common right over the suit property.
11. The learned counsel for the appellant contended that once the relief 'A' is granted, relief 'B' is an automatic in nature. The plaintiff is a common man and she can enjoy the suit property.
12. Now the point for determination is that, whether such a right in common for using the suit property as a pathway for her men, cattle a
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