(Prayer: Second Appeal filed under Section 100 of CPC., against the judgment and decree dated 26.12.2002 and made in A.S.No.60 of 2002 on the file of the learned Additional District Court (FTC-IV) Erode at Bhavani, reversing the judgment and decree dated 29.06.2001 and made in O.S.No.412 of 1990 on the file of the learned Principal District Munsif, Bhavani.)
1. The decree and judgment dated 26.12.2002 and made in appeal in A.S.No.60 of 2002 on the file of the learned Additional District Court (FTC-IV) Erode at Bhavani, reversing the judgment and decree dated 29.06.2001 and made in O.S.No.412 of 1990 on the file of the learned Principal District Munsif, Bhavani are under challenge in this second appeal.
2. The appellants are the defendants whereas the respondent is the plaintiff in the suit in O.S.No.412 of 1990. For easy reference the parties to the suit may hereinafter be referred to as it is in the suit, where ever the context so require.
3. This second appeal came to be admitted on the following substantial question of law;
Whether the expression used in Exs.A1 and A2 - Customary pathway can be understood to mean that it is cart track?
4. The plaintiff has filed the above suit seeking the following reliefs;
a) declaring his easementary right over the suit property from the public road to his land in S.F.No.387/2 through the defendants lands in R.S.No.387/1 (Old S.F.No.650) of Ilipili Village, Bhavani Taluk, as marked in the plaint plan.
b) granting permanent injunction restraining the defendants, their men agents assignees etc., from interfering with the plaintiff's user of the cart track (suit property) as ever before.
5. As per the plaint, the suit property has been described as under;
Periyar District, Erode R.D.Anthiyur S.R.D. Bhavani Taluk, Ilipili Village, breadth of 5 = to 8 feet cart-track leads from North-South public road to the lands in R.S.No.387/2 through defendants lands in R.S.No.387/1 (Old S.F.No.650) of Ilipili Village as the plaint easementary right over the same, as marked in the plaint plan.
6. The case of the plaintiff is that he is the owner of the property measuring 80 cents comprised in Survey No.387/2 which was acquired by him from his mother and father under two settlement deeds dated 12.10.1997 and 15.07.1997 respectively to an extent of 60 cents and 20 cents respectively; totally '80
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7. According to the plaintiff, to enjoy his property he is having easementary right over the cart-track which runs through the defendants land comprised in Survey No.387/2. Since the defendants were attempting to obliterate the cart-track on 22.07.1990, he was constrained to file the suit to declare his easementary right over the suit property (cart track).
8. The claim of the plaintiff has been vigorously resisted by the defendants by filing their written statements wherein they have contended that the cart-track branches from south-north road and runs towards east then turns north and ends in Survey No.650. They are having lands in S.F.No.650, 651 and 657 and there is a well situated in Old Survey No.650. To the North of the said well there is a vari slopping down wards towards north from where only a pucca foot path is running towards east to the lands of the plaintiff namely lands situate in Old S.F.No.651 Ilipili Village (R.S.No.387/2).
9. The defendants have denied the alleged two settlement deeds dated 12.10.1987 and 15.06.1987 and would submit further that they have been created only for the purpose of this suit and that those documents did not provide any right of cart track over the defendant's lands. They have further contended that the physical features of the lands of the plaintiff would throw much light on the fact that no cart track is running to the land of the plaintiff comprised in R.S.No.387/2 over the lands of the defendants comprised in R.S.No.387/1. Even the partition deed dated 22.08.1949 effected between the first defendant, Ramasamy Konar who is the father of the plaintiff and one Palanisamy Konar along with their father Venkataja Konar, does not speak about the existence of the cart track in S.F.No.651.
10. The defendants never objected the foot path running near the well situated in Old No.650 running up to the lands of the plaintiff. They have also contended that the chanal course is running through each of the lands of the plaintiff. If, at all the plaintiff forms any new cart track, it would damage the channal course and ridges which runs through the agricultural lands and it would cause severe hardship in taking the water from the well to the lands.
11. Based on the pleadings of the parties to the suit, the trial court has formulated as nearly as five issues. Two additional issues were framed and besides this on 29.03.2001 as well as on 29.06.2001 two other additional issues were also formulated.
12. In order to substantiate his case the plaintiff was examined as PW 1 and 5 documents were marked on his behalf, during the course of his examination. The second defendant was examined as DW 1 and during the course of his examination Ex.B1 to B3 were marked. Apart from this the Advocate Commissioners report and plan were marked as Ex.C1 to C4.
13. On appreciation of the evidences, the learned trial judge has proceeded to dismiss the suit on 29.06.2001 on the following grounds;
(a) The subject matter of the suit i.e., the alleged existence of the cart track has not been properly described and its length and breadth have not been particularly specified in the plaint. The documentary evidences under Ex.A1 to A4 do not speak about the originating point as well as the ending point of the cart track.
(b) The Commissioners report and plan viz., Ex.C3 and C4 clearly speak about the non-existence of the alleged cart track.
(c) Both the plaintiff as well as the defendants have failed to produce any plan or copy of field map to depict the existence of alleged cart track.
(d) The plaintiff had not taken much interest in substantiating his claim that his ancestors had been enjoying the lands comprised in Survey No.387/2 through the subject matter i.e., the alleged cart track.
(e) As per the plaint, the cause of action arose on 26.07.1990 when the defendants were attempting to obliterate the suit cart track. The suit seems to have been filed on 27.07.1990 i.e., on the next day of the alleged cause of action. On the date of filing of the suit, the first Advocate Commissioner was appointed and he had also visited the suit property on the same date and after the completion of his inspection, he had filed a report along with a plan under Ex.C1 and C2 wherein he has stated that there is no vestige of obliteration of the suit cart track by the defendant on 26.07.1990 and therefore no cause of action to file to the suit was available.
(f) During the course of cross-examination PW 1 has admitted that he could not specify the fact that on whose land the cart track is in existence for the present and he has also admitted that the owners of the land through which the cart track branches have not been impleaded in the suit.
(g) Apart from this the trial court has also found that the cart track as admitted by the defendants is in existence up to the point S as it is seen from Ex.C2 plan appended with Ex.C1 Commissioners report and from point d to e it runs as pathway and not as cart track.
14. Only on the above grounds the suit was dismissed. But the Lower Appellate Court based on the documents ranging from Exs.A1 to A4 and also based on the evidence of DW 1 has found that the plaintiff had proved his case and that on perusal of the Commissioners report Ex.C2 there was no cultivation in the lands and that during the second visit of the Commissioner on 19.02.1999, bushes and thrones were grown on the suit cart track and only on this ground the Lower Appellate Court have allowed the appeal reversing the judgment of the trial court.
15. As observed in the opening paragraphs this appeal came to be admitted only on the single substantial question of law i.e., Whether the expression used in Exs.A1 and A2 - Customary pathway can be understood to mean that it is cart track?
16. Heard Mr.N.Manokaran and Ms.J.Star learned counsels appearing for the appellants and Mr.T.P.Manoharan learned counsel appearing for the respondent.
17. At the out set on an analytical approach with the evidence both oral and documentary, this court can say that the alleged cause of action has not been established by the plaintiff, because as argued by Mr.N.Manokaran the alleged cause of action was arisen on 26.07.1999 when the defendants were trying to obliterate the alleged cart track. On the next day i.e.,27.07.1999, the suit was filed for declaration to declare the plaintiffs easementary right over the alleged cart track as well as for the permanent injunction. On the same date the Commissioner was appointed and he had also visited the suit property and after compliance with the requirements of the commissioners warrant he had filed a report along with a plan under Ex.C1 and C2 respectively which would go to show that no such obliteration was seen in the subject matter. When the cause of action itself is not proved the edifice of whole case has become collapsed.
18. Secondly as argued by Mr.N.Manokaran the suit property has not been properly described. The learned counsel has termed the subject matter as defective description. In fact when the plaintiff is claiming easementary right over the defendants land he should have specified the length and breadth of the alleged cart track. But it has not been specified in the plaint schedule and according to the provisions of Order 7 Rule 3 of the Code of Civil Procedure, the suit it itself is not maintainable.
Rule 3 to Order 7 of C.P.C., enacts as under;
Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
19. On coming to the present case on hand, the place where the suit cart track originates and the place where it ends have not been specifically stated in the plaint and apart from this the length and breadth as well as the survey numbers of the land through which the cart track runs till it's end has not been stated by the plaintiff.
20. It is the specific case of the defendant that they never objected to use the pathway running from the well which is marked as f in Ex.C2, Commissioners plan situate in S.F.No.650 to the lands of the plaintiff through the ridges. The Exs.A1 and A2 i.e., alleged settlement deeds executed in favour of the plaintiff by his mother and father are not sufficient to prove the claim of plaintiff he is having the easementary right to have access to his landed property through the lands of the defendants comprised in Survey No.387/1.
21. It is not in dispute that till the well marked as f in the Commissioners plan, the cart track is available and thereafter it slowly reduces it size and therefore the, Commissioner has stated that between the points d and e a pathway is available and no evidence is available to show that cart track is in existence beyond the well.
22. Mr.Manokaran learned counsel has also argued that the defendants have objected the Commissioners Report in respect of the alleged wheel marks in the suit property and that the Commissioner had failed to note another main water channal commencing from point e and turns towards west abetting the pathway.
23. Mr.N.Manokaran has also maintained that as noted in the Commissioners Report sugarcane was cultivated on the northern side, and turmeric was cultivated on the southern side of the defendants land. He has also added that the crops of sugarcane were placed in channal and that the southern side of the defendants land is lying = feet down from A and B ridges. He has also adverted to that the Commissioners report is very clear in saying that there was no well, and contrary to that, the finding of the lower appellate court was absolutely erroneous one and liable to be set aside.
Section 4 of Easements Act 1882 defines the term easements as under;
An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own. Dominant and servient heritages and owner The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation In the first and second clauses of this section, the expression land includes also things permanently attached to the earth; the expression beneficial enjoyment includes also possible convenience, remote advantage, and even a mere amenity; and the expression to do something includes removal and appropriation by the dominant owner for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.
24. A primary characteristic of an easement is that its burden falls upon the possessor of the land from which it issued and that characteristic is expressed in the statement that the land constitutes a servient tenement and the easement dominant. Easement by prescription is a mode of acquiring title to property by immemorial or long continued enjoyment, and refers to personal usage restricted to claimant and his ancestors of grantors. An easement of access is a right or ingress and egress to and from the premises of a plot owner to a street appurtenent to the land of the plot owner. A private easement is one in which the enjoyment is restricted to one or a few individuals, while a public easement is one the right to the enjoyment of which is vested in the public generally or in an entire community; such as an easement of passage on the public streets and highways or on navigation on a stream. This principle is laid down in the decision in Dwijesh Chandra Dutta v. Kalyani Das reported in 1986 (1) Civil LJ 202 at 208 (Gau).
25. The learned counsel for the defendants has also drawn the attention of this court to the provisions of Section 13, 14 and 15 of the Easements Act 1882.
Section 13 reads as under;
Section 13 Easement of necessity and quasi-easements Where one person transfers or bequeaths immovable property to another -
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer of bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(C) if an easement, in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,-
(e) if an easement over the share of one of them is necessary for enjoying the share of the another of them, the latter shall be entitled to such easement; or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section clauses (a), (c) and (e) are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. Section 14 of the Easement Act envisages that when a right to a way of necessity is created under Section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way, but it must be reasonably convenient for the dominant owner.
When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out. As already pointed out Section 15 contemplates the acquisition by prescription. The first portion of this section envisages that where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as easement, without interruption, and for twenty years.
26. Therefore, it is thus clear that in order to acquire easement by prescription, as per Section 15 of the Indian Easements Act, the plaintiff should have proved before the court that he had been using it for 20 years and more. In this connection Mr.M.Manokaran learned counsel has canvassed that when there is no evidence regarding the usage of the cart track, the suit cannot be decreed relying upon the evidence regarding admitted fact of pathway. He has also argued that the plaintiff is having the facility of ingress and egress to his property through the pathway and that in such a case, his inclination or desire to use the suit property as his cart track would not attract the concept easement by necessity or easement of necessity by implied grant.
27. Apart from this, he has also maintained that the easementary right could not be claimed on destroying the agricultural lands. In this case the Commissioners report and plan viz., Ex.C1 to C4 have clearly specified that the easementary right has been claimed through the defendants agricultural land. As hereinbefore stated, the Commissioners report has given a vivid account that no cart track is in existence.
28. In support of his contention Mr.M.Manokaran has relied upon the decision of this court in K.Samundi Gounder v. Samaraj decided on 05.04.2013 in the second appeal in S.A.No.1790 of 2004 wherein it has been held that;
19. A mere running of the eye over the above precedent would convey and indicate that so far agricultural lands are concerned, the owner of an agricultural land situated far away from the public road should necessarily pass through the lands of other persons and that it does not mean that the said owners of the land, who own land in between the public road and his interior neighbour's agricultural land, should leave some specific extent of land for such interior neighbouring land owner to pass and re-pass and to take his cart or lorry, over his land. To put it in single syllabi words, the owner of the agricultural land, which is sandwiched by a public road and the agricultural land of his neighbour is not legally bound to permanently demarcate and keep vacant any specific extent in his own land for the said neighbour to pass and re-pass or take his cart through it.
20. If such a specific cart track is insisted upon, then agricultural operations would be in doldrums. It would be an entirely different issue if among the land owners in an agricultural area, certain extent is set apart permanently for such common cart track.
29. On the other hand Mr.T.P.Manoharan learned counsel for the respondent has argued that the plaintiff had easementary right over the said cart track which measures 5 = to 8feet leads from north-south public road to the plaintiff's exclusive land comprised in R.F.No.372/2 Old No.351 through the defendants land comprised in R.S.No.387/1 S.F.No.650 in Ilipili Village. He has also argued that the plaintiff in order to substantiate his case had produced Ex.A1 to A5 which were ageold documents i.e., 30 years ancient and parental documents.
30. He has also added that under Section 13(e) and 13(f) of Easement Act, where a partition is made of joint property of several persons, if an easement over the shares of one of them is necessary for the enjoyment of the share of another of them, the later shall be entitled to such easement. He has also added that if such easement is apparent and continuous and necessary for the convenient enjoyment of the share of the latter as it was enjoyed when partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement (as a quasi-easement).
31. He has also indicated that as stipulated in Ex.A3 partition deed which was effected between the first defendant, Ramasamy Konar who is the father of the plaintiff and one Palanisamy Konar along with their father Venkataja Konar, the cart track which is in existence on the mother side in S.F.No.650 could be used as cart track by the persons 2,3 and 4 to take their cart, cattle etc. He has also argued that based on Ex.A3, Ex.A1 and A2 also speak about the availability of the cart track which could be freely used by the plaintiff to take cart as well as his cattle to the lands comprised in Survey No.387/2.
32. Though he has argued that clear documentary evidences are available to show the bonafide claim of the plaintiff, that he is having easementary right based on Ex.A1 and A2, this court is not able to discern, as the very cause of action itself is failed to be proved and further the Commissioners report and plan Ex.C1 to C4 clearly prove that no cart track is available after the well which is pointed out as f in the Commissioners plan.
33. Though he has argued that there are specific recitals Ex.A1 to A4 with regard to the existence of cart track in Old No.387/1, this court is not able to countenance his arguments because when the plaintiff himself has failed to prove the cause of action and when the Commissioners report and plan clearly depicts the non-existence of the cart track after the well, the mere mentioning about the customary cart track is not sufficient to establish the claim of the plaintiff.
34. It is to be remembered that the substantial question of law has been formulated to consider the question as to whether the expression used in Exs.A1 and A2 tamil - Customary pathway can be understood to mean that it is cart track?. With the background of Exs.A1 to A4 and Exs.C1 to C4 as well as the testimonies of PW1 and PW 2 and other documentary evidences marked on behalf of the defendants, this court can answer that the expression customary pathway cannot be understood to mean that it is cart track as the measurements shown in the Commissioners report after the well i.e., from the point f is not sufficient to take the cart and if it is done so, as argued by Mr.N.Manokaran learned counsel for the defendants, it would cause damage to the agricultural crops.
35. Keeping in view of the above facts this court is of view that the judgement and decree dated 26.12.2002 and made in A.S.No.60 of 2002 on the file of the learned Additional District Court (FTC-IV) Erode at Bhavani are liable to be set aside the judgment and decree dated 29.06.2001 and made in O.S.No.412 of 1990 on the file of the learned Principal District Munsif, Bhavani are deserved to be restored.
36. Accordingly the second appeal is allowed, the judgement and decree dated 26.12.2002 and made in A.S.No.60 of 2002 on the file of the learned Additional District Court (FTC-IV) Erode at Bhavani are set aside and the judgment and decree dated 29.06.2001 and made in O.S.No.412 of 1990 on the file of the learned trial court are restored.