Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Mad) 2111

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.Sakthivel, J.
K.Muthusamy – Appellant
Versus
P.Thangavel and ors - Respondents
S.A.NO.719 OF 2019
Decided On : 18-12-2024

Advocates:
Advocate Appeared:
For the Appellant : Mr.R.Susendhiran for M/s.K.Sudhakar
For the Respondent: Mr.N.Umapathi

Easement rights granted through a final decree are permanent and cannot be extinguished by the existence of alternate pathways.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Dismissal of Suit for declaration and injunction - First Appellate Court reversed Trial Court's decree, misreading pleadings regarding easement rights - Plaintiff proved existence of Cart Track and right of easement by grant - Judgment of First Appellate Court set aside, Trial Court's decree confirmed. (Paras 6, 16, 17)

(B) Easement by Grant - Nature and scope - Easement by grant is a permanent arrangement, not extinguished unless abandoned by the dominant owner - Court emphasized the importance of comprehensive reading of pleadings. (Paras 12, 14)

Facts of the case:
The plaintiff sought declaration of easementary right over a Cart Track, which was part of a property originally partitioned in 1946. The First Appellate Court dismissed the suit, claiming insufficient pleadings, while the Trial Court had granted relief based on evidence presented.

Findings of Court:
The plaintiff proved the existence of the Cart Track and his right of easement by grant, leading to the conclusion that the First Appellate Court's dismissal was unjustifiable.

Issues: The main issues were whether the First Appellate Court was correct in dismissing the suit for insufficient pleadings and whether the plaintiff had established his easementary rights.

Ratio Decidendi: The court ruled that the plaintiff's easement by grant was valid and that the First Appellate Court misinterpreted the pleadings, leading to an erroneous dismissal of the suit.

Result: Second Appeal allowed, Judgment and Decree of the First Appellate Court set aside.

JUDGMENT :

R.Sakthivel, J.

PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree made in A.S.No.5 of 2018 dated February 22, 2019 on the file of the Subordinate Judge, Udumalpet, reversing the Judgment and Decree dated February 14, 2018 made in O.S.No.66 of 2012 on the file of the District Munsif, Udumalpet.

This Second Appeal is directed against the Judgment and Decree dated February 22, 2019 passed in A.S.No.5 of 2018 by the 'Subordinate Court, Udumalpet' ['First Appellate Court' for brevity] reversing the Judgment and Decree dated February 14, 2018 passed in O.S.No.66 of 2012 by the 'District Munsif, Udumalpet' ['Trial Court' for brevity].

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

FACTUAL MATRIX

3. The Suit Properties and some other properties including those in Survey Nos.47 48, 49 and 50 of Pukkulum Village originally belonged to one Andimuthu Gounder, who had two children, namely daughter – Nagarathinam and son – Ramalingam. Andimuthu Gounder filed a Suit for partition in ‘O.S.No.250 of 1946 on the file of Trial Court’ [‘1946 Suit’ for short] in respect of Suit Properties herein and some other properties on August 31, 1946, against his son and daughter. During the pendency of the Suit, he executed a registered Settlement Deed in favour of his daughter in respect of the Suit Properties herein and some other properties. Preliminary Decree was passed on May 27, 1947. Final Decree Application viz., I.A.No.671 of 1949 was filed. During the pendency of the said Application, Andimuthu Gounder passed away and Nagarathinam/ 2nd defendant therein was recognised as his legal representative vide Order dated February 16, 1950 passed in I.A.No.1521 of 1949 in the said Original Suit. A Commissioner was appointed to divide the Suit Properties therein. At that time, parties therein entered into a Compromise (Razinamah) and filed the same before the Trial Court. Pursuantly, Final Decree was passed in terms of the Compromise.

3.1. As per the Final Decree, a portion of land in Survey No.47 along with easementary right of pathway through Survey Nos.48 and 50 fell into the hands of Nagarathinam. As per the Final Decree, the said pathway can be used by Nagarathinam to access the said portion in Survey No.47 including ingress and egress of Carts, Cattles etc. The said portion of land in Survey No.47 forms the Suit A Schedule property herein, and the said Cart Track forms the Suit B Schedule property herein.

3.2. Further, in the said Final Decree, Ramalingam was allotted a portion of the property in Survey No.47 and the entire extents of Survey Nos.48, 49 and 50. To be noted, Survey Nos.47 to 50 are all adjoining lands.

3.3. Thereafter, on January 20, 1997, the plaintiff purchased the Suit A Schedule property from Nagarathinam. Similarly, the defendants’ vendor purchased the properties in Suit Survey Nos.47 to 50 allotted to Ramalingam from him.

3.4. In the year 2009, the 2nd defendant herein filed a Suit in ‘O.S.No.455 of 2009 on the file of Trial Court’ ['2009 Suit' for short] against the plaintiff and plaintiff’s brothers seeking permanent injunction in respect of the lands he purchased from Ramalingam. The said Suit was decreed ex-parte on April 12, 2011 in favour of 2nd defendant herein. In the said Suit Advocate Commissioner was appointed and he filed Report and Plan marked as Ex-A.4 herein.

3.5. Thereafter, the present Suit has been filed by the plaintiff on February 15, 2012 seeking declaration of right of Cart Track, consequential relief of permanent injunction, as well as the relief of mandatory injunction to remove the stones put up by the defendants obstructing the Cart Track, which form the Suit C Schedule property herein.

3.6. According to the defendants, there is no such existence of a Cart Track as alleged by the plaintiff on the ground, and the plaintiff has failed to mention the dimensions o