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2025 Supreme(Online)(Mad) 72173
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Honourable P. DHANABAL
NATESAN – Appellant
Versus
SENTHIL RAJA – Respondent
In a suit for declaration and permanent injunction, the refusal to grant a declaratory relief does not automatically bar the grant of a separate permanent injunction based on proven long enjoyment, even if the plaintiff fails to prove a common pathway or a case of easement of necessity.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope - Concurrent findings of fact - The High Court, under Section 100 of the CPC, cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. (Paras 19, 20)
(B) Easements Act, 1882 - Easement of necessity vs. Easement by prescription - A plaintiff must plead and prove that the dominant and servient tenements were under common ownership to claim an easement of necessity - Mere convenience or inconvenience is not a test - However, where a plaintiff has pleaded long enjoyment and possession of a pathway, and there is evidence of such use from time immemorial, a relief of permanent injunction can be granted on the ground of easement by prescription, even if the claim of easement of necessity is not made out. (Paras 17, 17.1, 17.2)
(C) Civil Procedure - Relief - Consequential relief - Where a plaintiff seeks a declaration and a separate relief of permanent injunction (on payment of separate court fee), the refusal to grant the declaratory relief does not automatically preclude the grant of the injunction, if the plaintiff is otherwise entitled to it on the basis of his own evidence. (Paras 16, 16.2)
Facts of the case:
The respondent/plaintiff filed a suit for declaration that a cart track was a common pathway and for a permanent injunction restraining the appellant/defendant from interfering with its use. The trial court dismissed the suit for declaration but decreed the suit for permanent injunction, finding that the plaintiff had been using the pathway for a long period (easement of necessity). The first appellate court confirmed the decree, albeit on the basis of easement by prescription. The defendant filed a second appeal.
Findings of Court:
The High Court held that the concurrent findings of the courts below regarding the existence of the pathway and the plaintiff's long enjoyment of it were based on evidence, including old sale deeds and a commissioner's report. The court noted that the relief of permanent injunction was not a consequential relief but a separate one, paid for with a separate court fee. The court found that the first appellate court had correctly granted the injunction based on the plaintiff’s evidence of long possession and use (easement by prescription), even though the plaintiff failed to prove a case of easement of necessity or a common pathway.
Issues: 1. Whether the courts below erred in granting the consequential relief of permanent injunction after having negatived the principal declaratory relief. 2. Whether the appellate court erred in granting permanent injunction on the ground of easement by prescription after finding that the plaintiff had not made out a case of easement of necessity. 3. Whether the plaintiff must succeed on the strength of his own case, and whether the appellate court erred by picking holes in the defendant's case.
Ratio Decidendi: The High Court, exercising its limited jurisdiction under Section 100 CPC, found no perversity in the concurrent findings of fact by the lower courts. The court held that the plaintiff had proven his long possession and enjoyment of the pathway through documentary and oral evidence. Since the permanent injunction was a separate relief with a separate court fee, its grant was not contingent on the grant of the declaratory relief. The court also found that, despite insufficient pleading for easement by prescription, the evidence on record supported such a claim, and the defendant was not prejudiced. The court declined to interfere, stating that findings of fact cannot be overturned in a second appeal unless they are shown to be perverse.
Result: Second Appeal dismissed. Connected miscellaneous petition closed.
ORDER
The Second Appeal has been preferred as against the Judgment and Decree of the learned Subordinate Judge, Rasipuram dated 10.04.2015 in A.S. No.8 of 2014 confirming the Judgment and Decree of the learned District Munsif, Rasipuram dated 08.04.2013 in O.S. No.214 of 2010, wherein the respondent herein has filed an Original Suit in O.S. No.214 of 2010 on the file of the learned District Munsif, Rasipuram for the relief of declaration and permanent injunctin and the said Suit was dismissed in respect of declaration and the Suit was decreed in respect of permanent injunction. Aggrieved by the said decree and judgment, the defendant had preferred an appeal before the I Appellate Court i.e., Subordinate Court, Rasipuram and the same was dismissed. Aggrieved by the said decree and judgment, the present Second Appeal has been preferred by the defendant.
2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the Trial Court.
3. The brief averments of the Plaint before the trial Court are as follows:
The Suit property originally belongs to the Plaintiff through a Settlement Deed dated 18.06.1997 and the Plaintiff is in enjoyment and possession of the property. The defendant is having property on the western side of the Plaintiff’s land and the defendant purchased the property through a Sale Deed dated 27.02.1992. The defendant purchased the property excluding cart track which is on the Southern side of the defendant’s land. There is cart track runs from Vaiyappamalai Road towards Eastern side and on the Southern side in Survey No.36/1C and again, it runs on the Northern side and runs on the Western side of Survey No.51/1C and 35/5 and on the Eastern side of Survey No.35/3. The said cart track is in breadth of 15 feet from the Road. The cart track is mentioned as Iitteri in all the Sale Deeds. While so, the said cart track is common for all the adjacent land owners. Now the defendant is claiming title of the cart track. On 26.10.2010, the defendant along with rowdy elements came to the property and tried to obliterate the existing cart track and also planted coconut trees upto his boundary and on the southern side of the coconut trees, the cart track runs towards East. Therefore, it is required for the Plaintiff as ‘easement of necessity’. Therefore, the Plaintiff has filed the Suit for declaration and for permanent injunction.
4. The brief averments of Written Statement filed by the 1 s t defendant are as follows:-
The Suit filed by the Plaintiff is false and not maintainable either in law or on facts. The Plaintiff has to prove all the averments made in the Plaint, except those that are specifically admitted by the defendant. It is true that the defendant purchased the property through a Sale Deed dated 27.02.1992 and it is not correct that excluding the cart track situated on the southern side, the property was purchased. In fact, the defendant purchased the property through a Sale Deed dated 27.02.1992. At the time of purchased of the property, there was no any pathway in existence and he purchased the entire property for valuable consideration. The Survey No.36/1c is exclusively belonging to the defendant. After purchase of the property by the defendant, there was no any pathway as alleged in the Plaint. The Plaintiff is using the pathway from Aattayampatti Main Road to Purasalpatti Road. The defendant is also using the said Road to access his property and there is no pathway in existence in S.F. No.36/1C. Already the Suit in O.S. No.200/2010 was filed, in which, an interim order was obtained. Suppressing the same, the present Suit has been filed by the Plaintiff. Therefore, the Suit is liable to be dismissed.
5. Based on the above said pleadings and upon hearing both sides and perusing the documents, the trial Court had framed the following issues:
(i) Is it true that there is no pathway available in S.F. No.36/1C and the Plaintiff trespassed in the property and creat
