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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. Seshasayee, J.
Harris – Appellant
Versus
Selvaraj and ors. – Respondents
S.A.(MD) No.344 of 2010
Decided On : 04-08-2022
Easement Act, 1882– Section 15, 18 – Suit for bare injunction – According to him, he had put up a residential building and also constructed a granite compound wall on north – Plaintiff in O.S. on file of Principal District Munsif Court, which he had laid for bare injunction that defendant be barred from trespassing into his property, is appellant herein –Held, In a country like India where lands are usually unenclosed, before a right of easement could be declared to be established over them, courts must require strict proof that plaintiff has satisfied requirements of Sec.15 of Easement Act..” , which contextually might have to be read as one of customary easement under Sec. 18 of Act – What could be gathered is that before plaintiff has put up a compound wall around his property, it is possible that those in vicinity might have passed through property of plaintiff to access road in south – Point is will it mature into a right of way? If life of law is not logic but a facet of experience, then way life is lived in our villages should not be forgotten – It is not uncommon in villages to let villagers go through one's property, but that is done more out of courtesy for other villagers as an aspect of co-existence – To convert such courtesies into a vested right of easement is too dangerous – Hence pleading and proving customary easement way they should be done is indispensable and here defendants' combined effort is far inadequate – Appeal allowed.
JUDGMENT :
The plaintiff in O.S.No.135 of 2005 on the file of the Principal District Munsif Court, Kuzhithurai, which he had laid for bare injunction that the defendant be barred from trespassing into his property, is the appellant herein. The suit was decreed by the trial court, and the plaintiff suffered a reversal before before the Sub Court, Kuzhithurai, in the first appeal preferred by the defendants in A.S.No.32 of 2008.
Pleadings:
2.1 The case of the plaintiff is that he has purchased a plot measuring 10 cents from a certain Jacob under Ext.A1-sale deed, dated 01.08.1997. According to him, he had put up a residential building and also constructed a granite compound wall on the north. He claims that the defendants are trying to bring down a compound wall to enter his property and hence laid the suit for bare injunction.
2.2 There are eight defendants. In the written statement filed by defendants 1 and 3 to 7, and adopted by defendants 2 and 8, they principally allege that they are residents of Paruthivilai, Konamvilai and Thundamvilai, that these areas are located to the north of the suit property, that the main road from Munchirai - Vettuvenni is in the far south of the suit property, that to access the main road, these defendants and their ancestors and those from the locality have been using a six links wide pathway that runs through the property of the plaintiff, and that the plaintiff is trying to obstruct the pathway. They also pleaded that on 03.07.1995 they obtained a right of pathway over the property of the 8th defendant under Ext/B-1.
2.3 The plaintiff has filed a rejoinder, refuting the allegations in the written statement. In particular, the plaintiff pleads about a pathway connecting the property to the north of his property and the main road, which he would plead runs to the west of the plaintiff's property and others property to its immediate west.
3. The trial Court framed necessary issues and the dispute went to trial. Before the trial Court, the plaintiff examined himself as P.W.1 and also examined an independent witness as P.W.2. He produced Ext.A1 to Ext.A5 of which Ext.A1 is the title document in Malayalam of which Ext.A2 is the transliteration of Ext.A1 in Tamil.
4. For the defendants, the 1st defendant alone was examined as D.W.1 and he produced Ext.B-1 sale deed executed by the 8th defendant in favour of some of the defendants. The trial Court appointed an Advocate Commissioner for local inspection, and he had filed his reports, which are taken on record by the trial Court as Ext.C1 and Ext.C2. The Commissioner was also examined as C.W.1.
5. On appreciating the evidence, the trial Court decreed the suit. Its line of reasoning can be bullet pointed:
The defendants have not raised any counter claim to secure the title to the pathway.
The Commissioner has not clearly indicated about the existence of the alleged pathway in the property of the plaintiff.
The defendants have not required the Commissioner to ascertain if there are any alternate pathways available to them.
6. Aggrieved by the said decree, the defendants preferred a first appeal in A.S.No.32 of 2008. Re-appraising the evidence before it, the first appellate Court differed from the trial Court and allowed the appeal. The first appellate Court has taken a view that the Commissioner has denoted a pathway in the middle of the plaintiff's property, and inasmuch as no alternate pathway is shown to be existing, he accepted the contentions of the defendants.
7. Aggrieved by the reversal in fortune before the first appellate Court, the plaintiff has preferred this appeal. The appeal was admitted for considering the following substantial questions of law:-
Easementary rights can be established even in the absence of specific documentation, especially when mutual agreements are implied through use.
The right to use a path for accessing one's property can be established through long-term use and relevant property documents, regardless of explicit claims under the Easement Act.
Consistent recitals in prior sale deeds establish common pathway rights, prevailing over later exclusive claims absent explanation.
The dismissal of an injunction suit cannot occur without proof of the defendant's claimed easement, and a plaintiff's established possession is paramount for granting relief.
The court upheld the exclusivity of the plaintiff's property rights over the pathway against the appellants' easement claims.
The plaintiff's right of way through a common passage, as established by a sale deed and supported by evidence, prevails despite elevation differences and the defendants' denial.
The court's decision emphasized the importance of proper appreciation of evidence and the absence of substantial question of law in upholding the decree and judgment.
A permanent injunction cannot be granted based on assumptions of trespassing when evidence indicates the existence of an established passage at the inception of the suit, and such injunctions are uns....
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