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2022 Supreme(Online)(Mad) 98444

MADRAS HIGH COURT
R. Pongiappan, J
Subramani – Appellant
Versus
Marappa Gounder – Respondent
S.A.No.253 of 2010|M.P.Nos.1 & 2 of 2010

Advocates:
For the Appellants/Petitioners: S.Parthasarathy
For the Respondents: Titus Enock, I.C.Vasudevan

When a right of way is expressly provided by grant within a registered sale deed, the necessity to establish easementary rights via prescription or by necessity is obviated, as the right rests upon the legal title conferred by the deed.

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Easementary rights - Grant vs Prescription and Necessity - Where document of title clearly grants right to use path for ingress and egress, plea of easement by necessity or prescription becomes secondary or redundant - Ownership and easement are distinct, but a right explicitly granted in a registered sale deed creates a valid entitlement that prevails over conflicting or alternative claims of easementary rights. (Paras 15, 16, 20 and 21)

(B) Pleadings - Inconsistent pleas - Claiming ownership and easement concurrently - While courts generally view ownership and easement as mutually exclusive, evidence of a specific grant in an ancient title deed, admitted by the parties, renders such technical pleading challenges irrelevant to the validity of the access right. (Paras 19 and 20)

Facts of the case:
The Appellant (Plaintiff) filed a suit seeking to restrain the Respondents (Defendants) from forming a cart track on his land. The Respondents counter-claimed, asserting rights over the track through easement and under a sale deed dated 08.05.1942. The Trial Court and the First Appellate Court ruled against the Plaintiff and in favor of the Respondents' counter-claim, finding that the right to the track was established by the sale deed.

Findings of Court:
The Court held that the Respondents successfully proved their right to use the 8-foot cart track as it was expressly provided for in the sale deed dated 08.05.1942, which the Plaintiffs admitted in their pleadings. Consequently, the claim of the Plaintiff for permanent injunction was dismissed as meritless.

Issues: Whether the Respondents are entitled to make a counter-claim without cause of action; and whether the Respondents possess valid easementary rights over the suit property.

Ratio Decidendi: When a right to use a pathway is expressly granted in a title document (Sale Deed), it confers a right by grant. The necessity to prove easement by prescription or necessity falls away once the right by grant is established and substantiated by the document, especially when such document is not disputed.

Result: Second appeal dismissed.

Table of Content
1. overview of parties' pleadings, suit history, and trial court findings. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8)
2. formulation of substantial questions of law regarding counter-claims and easement rights. (Para 9 , 10 , 11 , 12 , 13)
3. legal requirements and contradictions in pleading easement by prescription vs grant. (Para 14 , 15 , 16 , 17 , 18 , 19)
4. effect of express grant in a sale deed confirming legal entitlement to a pathway. (Para 20 , 21 , 22)

J U D G M E N T

The Second Appeal is focused as against the judgment and decree dated 06.02.2009 passed in A.S.No.21 of 2008 by the learned II Additional Subordinate Judge, Gobichettipalayam, confirming the judgment and decree dated 22.10.2007, made in O.S.No.21 of 2004 by the learned District Munsif, Sathyamangalam.

2. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

3. The laconic averments made in the plaint, are as follows:

(i) The 1st plaintiff is the absolute owner of the land comprised in Survey Nos.167/2, 8, 10, 166/5, 6, 9 and 174/3, 5 of Sunkarampalayam Village. Similarly, the 2nd and 3rd plaintiffs are having the lands in Survey Nos.166/2, 3, 4, 7, 8, 10, 11, 167/3, 4, 9 and in 174/4, 6, 7 of the same village. The 3rd plaintiff is having three brothers, among which, from one of the brother Arumugam, he purchased the land vide sale deed dated 15.02.1989. Further another brother Kaliappa Gounder, is also having a share in the suit property. Since the said Kaliappa Gounder had no intention to file a suit, he was added as the 5th respondent in the suit.

(ii) The fathers of the plaintiffs 1 to 3, are brothers and their father's name is one Karuppa Gounder. Plaintiffs are having the land on the Eastern side of the North-South of the cart track, which was shown in the rough sketch. From the date of purchase and also from the date of grant, the plaintiffs paid the necessary tax to the suit land, and they have been cultivating their lands.

(iii) The defendants are having the agricultural lands on the eastern side of the plaintiff's land. The defendants 2 to 4 are the sons of the first defendant. Before filing the suit, the defendants 1 to 4 asked the plaintiffs to allot some portion in the land owned by the plaintiffs, as a cart track. Since the plaintiffs have refused to the same, the defendants 1 to 4, damaged the live fence, which was marked as 'XY' in the rough plan. In the panchayat held, the defendants asked apology and thereafter, they made a proclamation that they would form a cart track in the plaintiff's land. Previous to the suit, the defendants reached their field by using the land, which was situated on the Eastern side of their lands. At no point of time, the suit land has been used as a cart track. Now, the defendants are attempting to form a cart track. Hence, the suit.

4. The averments found in the written statement filed by the 1st defendant, which were adopted by the defendants 2 to 4, are as follows:

(i) The averments made in the plaint with respect to the lands owned by the plaintiffs are true. However, the lands in Survey Nos.166/12 and 174/9 belongs to 1st defendant. After putting up a hut, the defendants were cultivating the said land for the past 70 years. The defendants used to take cart through SF No.166, which belongs to the plaintiffs.

(ii) The existence of cart track was mentioned in the sale deed dated 08.05.1942. Excepting the suit track, no other cart track is found available to the defendants. In order to take vengeance, the plaintiffs damaged the suit cart track. Therefore, the defendants are entitled to the suit cart track through easment by grant and easment by necessity.

5. Apart from filing the written statement, the defendants 1 to 4 filed a counter claim application wherein they have stated as follows:

(i) In between the defendants' land and public itteri which runs North-South, on West lies the plaintiffs' land S.F.No.166 and to reach the defen

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2022 Supreme(Online)(Mad) 98444

MADRAS HIGH COURTR. Pongiappan, JSubramani – AppellantVersusMarappa Gounder – RespondentS.A.No.253 of 2010|M.P.Nos.1 & 2 of 2010

When a right of way is expressly provided by grant within a registered sale deed, the necessity to establish easementary rights via prescription or by necessity is obviated, as the right rests upon the legal title conferred by the deed.

Cases Referred (1)

MADRAS HIGH COURT
R. Pongiappan, J
Subramani – Appellant
Versus
Marappa Gounder – Respondent
S.A.No.253 of 2010|M.P.Nos.1 & 2 of 2010