Easementary rights can be implied from circumstances and do not require explicit mention in pleadings, affirming the right to access property above owned land.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, 1908 against the judgment and decree dated 30.01.2020 made in A.S. No.21 of 2019 on the file of the Principal District Judge, Vellore, reversing the judgment and decree dated 27.03.2019 made in O.S. No.245 of 2012 on the file of the Principal Subordinate Judge, Vellore District.

The defendant in the suit in O.S.No.245 of 2012 on the file of the Principal Sub-Court, Vellore, has filed this second appeal challenging the judgment and decree passed by the Principal District Court, Vellore, in A.S.No.21 of 2019, dated 30.01.2020.

2. In the suit, the appellant herein is the defendant and the respondent herein is the plaintiff. In the forthcoming paragraphs, the parties will be referred to as per their litigative status in the suit.

3. The plaintiff had filed the suit seeking for a declaration that he is entitled to use the staircase from the first floor to the terrace, morefully, described in the suit 'B' schedule, and he has also sought for a consequential injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the staircase and also terrace and also for a permanent injunction to restrain the defendant from demolishing the staircase.

4. The plaintiff had purchased the suit 'A' schedule property, namely, ground floor and first floor of the building consisting of 3 shops in each floor from one Kanthammal under a sale deed dated 23.09.2005. The plaint 'B' schedule property is only a staircase in the building to reach the first floor as well as open terrace on top of the first floor, which according to the plaintiff, was enjoyed by his vendor Kanthammal, even prior to the sale of the property to the plaintiff under the sale deed dated 23.09.2005.

5. According to the plaintiff, the defendant, after purchasing the property under the sale deed dated 30.04.2010, was creating problems for the plaintiff by preventing him from using the common staircase as well as from using his terrace by having access through the common staircase. According to the plaintiff, only under those circumstances, a suit in O.S.No.245 of 2012 on the file of the Principal Sub-Court, Vellore, came to be filed by the plaintiff seeking for the reliefs against the defendant as stated supra.

6. However, according to the defendant, as seen from the written statement, only upto the first floor, the plaintiff was granted right to use the staircase and he does not have any legal right to use the staircase for reaching the terrace on top of his three shops located in the first floor. According to the defendant, under the sale deed dated 30.04.2010, by which the defendant had purchased his property, the right to use the terrace, having access through the staircase, was vested exclusively with the defendant. Therefore, according to the defendant, only upto the first floor, the plaintiff can use the staircase and he cannot use it for entering the terrace on top of the plaintiff's shops in the first floor.

7. Before the Trial Court, the plaintiff had filed three documents, which were marked as Exs.A1 to A3; Ex.A1 is the sale deed dated 23.09.2005 standing in the name of the plaintiff for the suit 'A' schedule property; Ex.A2 are the property tax receipts; and Ex.A3 are the photocopies with CD. On the side of the plaintiff, the plaintiff himself was examined as PW1. On the side of the defendant, two documents were filed, which were marked as Exs.B1 and B2; Ex.B1 are the photographs; and Ex.B2 is the sale deed dated 30.04.2010 standing in the name of the defendant. The defendant himself was examined as DW1.

8. The Trial Court, in its judgment and decree dated 27.03.2019 passed in O.S.No.245 of 2012, partly decreed the suit in favour of the plaintiff. The Trial Court held that the sale deed dated 23.09.2005 (Ex.A1), under which, the plaintiff had purchased 'six' shops, contains the recitals granting permission to use the staircase upto the first floor and no permi