Interpretation of Will and Sale Deeds to determine the right to use the common cart track.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of C.P.C., against the Judgment and decree dated 23.10.2013 made in A.S.No.32 of 2010 on the file of the Subordinate Judge, Tiruppattur, Vellore District, modifying the judgment and decree dated 15.12.2009 made in O.S.No.156 of 1998 on the file of the District Munsif, Tiruppattur, Vellore District.)

1. The plaintiffs are the appellants in the Second Appeal.

2. The case of the plaintiffs is that the suit property contains totally 7 items of properties and item Nos.1 to 5 absolutely belong to the 1st plaintiff and item Nos. 6 and 7 absolutely belong to the 2nd plaintiff. The further case of the plaintiffs is that in order to conveniently enjoy their properties and for their proper access from Tirupattur-Salem Highways, they purchased Survey Nos. 494/3 and 494/1C through a registered Sale Deed dated 22.01.1990, marked as Ex.A1, from one Lalithammal, Kalaivani and Santhammal. These two properties have been shown as item Nos.1 and 2 in the suit schedule. It is being used as cart track to access the other properties. Thereby, the plaintiffs are claiming title, ownership and possession of all the suit properties exclusively. They also claimed that the revenue records have been mutated and patta has been granted for all the properties in plaintiffs’ names.

3. It is stated that the defendants are the adjacent owners of agricultural lands and they attempted to destroy the crops that have been cultivated by trespassing into the property and that they are also creating a cloud over the title of the plaintiffs. Hence, the suit was filed by the plaintiffs seeking for the relief of declaration of title and for permanent injunction.

4. The case of the defendants is that the properties originally belong to one Lakshmana Chettiar and his wife Dhanakotti Ammal. The properties were bequeathed in favour of their seven daughters through a Will dated 20.01.1973, marked as Ex.B1. Accordingly, the ‘A’ Schedule property in the Will vested upon the daughter viz., Muthu Vediammal. Similarly, the property in ‘F’ schedule in the Will vested upon Sakkubai. The further case of the defendants is that there was a common cart track, that was specifically provided in the Will to enable the respective daughters to have access and to enjoy their respective portions. It is claimed that the 2nd defendant had purchased the share of Nagarathinammal and Indiraniammal and access to those properties are only through the common cart track. The enjoyment over the common cart track was also specifically provided in the sale deed, that was executed in favour of defendants. It is further stated that the plaintiffs were creating problems for the defendants to use the common cart track and hence, a panchayat was convened. In the said panchayat, a decision was taken to the effect that the plaintiffs will not restrain the defendants from using the cart track. Therefore, the defendants have taken a clear stand that the plaintiffs do not have any exclusive right over the cart track and to that extent, the suit deserves to be dismissed.

5. The trial court on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, decreed the suit through a judgment and decree dated 15.12.2009. Aggrieved over the same, the defendants 5, 6 and 7 filed an appeal in A.S.No.32 of 2010 before the Sub-Court, Tirupattur. The lower appellate court on re-appreciation of oral and documentary evidence and after considering the findings of the trial court, allowed the appeal through a judgment and decree dated 23.10.2013 and thereby, the judgment and decree of the trial court was set aside. Aggrieved by the same, the plaintiffs have filed this second appeal.

6. This Court while admitting the Second Appeal, framed the following substantial question of law:-

a) In the absence of any specific plea as to whether the defendants are claiming any easementary right either by way of grant, prescription or necessa