IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 12.8.2011 CORAM The Hon'ble Mr.Justice R.S.Ramanathan S.A.No.28 of 2007 and C.M.P.No.83 of 2007 Mr.Kunjan ...Appellant/ 2nd Defendant Vs. 1.Mr.Ramasamy ...1st Respondent/ Plaintiff 2.Tamil Nadu Government rep. by District Collector, Trichy ...2nd Respondent/ 3rd Defendants Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 31.1.2003, passed in A.S.No.186 of 2002, on the file of the Learned Principal District Judge, Perambalur, in dismissing the judgment and decree dated 19.12.1994, passed in O.S.No. 1332 of 1981, on the file of the Learned District Munsif, Perambalur. For Appellant : Mr.A.E.Ravichandran For Respondent-1 : No appearance For Respondent : Mr.M.Raja Government Advocate (CS) JUDGMENT The second defendant is the appellant herein. The first respondent/plaintiff filed the suit for declaration that he has got right of way through the pathway JKLM, which has been marked in red colour in the plaint plan and also for permanent injunction, restraining the defendants from interfering with his peaceful enjoyment of the suit pathway to reach his land in the north. 2. The case of the first respondent/plaintiff was that he is the owner of the property situate in S.Nos.267/5 and 267/3b, which is of an extent of 90 cents and the Government also assigned 58 cents of land in S.No.295/1, which is situate south of the property owned by the first respondent/plaintiff in S.Nos.267/5, 267/3b and https://hcservices.ecourts.gov.in/hcservices/ the total extent of the property in S.No.295/1 is 1.02 acres and out of 1.02 acres, the first respondent/plaintiff was assigned 58 cents and the land in S.No.295/1 is a barren land belonging to the Government and one Chellamuthu Aasari, was assigned 15 cents of land in S.No.295/1 and the first respondent/plaintiff was using the pathway available in S.No.295/1 to reach his land in S.Nos.267/5 and 267/3b and the pathway was shown in red colour and was marked as 'JKLM' in the plaint plan and the first respondent/plaintiff has no other way, except the pathway marked as 'JKLM' in the plaint plan to reach his property in S.Nos.267/5, 267/3b and Chellamuthu Aasari, never interfered with the enjoyment of the pathway by the first respondent/plaintiff and the said Chellamathu Asari, contrary to the terms of assignment, sold the pathway to the first defendant and therefore, the sale in favour of the first defendant is illegal. Moreover, the assignment in favour of the Chellamuthu Aasari, was also cancelled by a reason of the sale of the property by him and as the defendants were interfering with the plaintiff's peaceful possession and enjoyment of the suit pathway, the suit was filed for the relief stated above. 3. The appellant filed a written statement stating that there was no pathway in the property that was assigned in favour of the Chellamuthu Aasari and there was a Mariamman Pattai in S.No.295/1 and that was used by all the persons, and there is no pathway, as claimed by the first respondent/plaintiff in the area marked as JKLM, which was assigned to Chellamuthu Aasari. Therefore, the first respondent/plaintiff is not entitled to the relief prayed for. 4. The Trial Court, on the basis of the oral and documentary evidence, dismissed the suit holding that there is no pathway in the property assigned to Chellamuthu Aasari, as claimed by the first respondent/plaintiff and therefore, the plaintiff is not entitled to the relief of declaration. 5. The Lower Appellate Court reversed the findings of the Trial Court and decreed the suit holding that as per Ex.A12, the proceedings of the District Revenue Officer, the pathway was mentioned by the Revenue Officials and per the Commissioner's report, there is no other pathway for the first respondent/plaintiff to reach his land and therefore, the plaintiff has proved his case and allowed the appeal and decreed the suit as prayed for. Hence, this Second Appeal. 6. The following substantial questions of law were framed at the time of admission:- i) Whether the Lower Appellate Court was correct in reversing the judgment of the Trial Court in granting a decree in favour of the plaintiff, while the plaintiff had https://hcservices.ecourts.gov.in/hcservices/ not established the existence of a cart track as claimed by him and the evidence was otherwise? ii) Whether the Lower Appellate Court has erred in not adverting its attention on the Advocate Commissioner's report, wherein, it has been pointed out that there was an alternative cart track, and if so, whether the Lower Appellate Court was right in allowing the suit granting a decree as if there was no alternative cart track? 7. The learned counsel appearing for the appellant submitted that the Lower Appellate Court without properly appreciating Ex.A12, erroneously held that the first respondent/plaintiff has no other pathway to reach his land in S.Nos.267/5 and 267/3b and without properly appreciating the written statement, erred in holding that the appellant himself admitted that there is a pathway in S.No.295/1, which was assigned to Chellamuthu Aasari and the appellant did not admit that pathway runs through the property assigned to Chellamuthu Aasari and it was further stated that there is Mariamman Pattai and the land in S.No.295/1, is a barren land belonging to the Government and that lead to any one of the pathway which runs through the property assigned to Chellamuthu Aasari. 8. The learned counsel for the appellant further submitted that as per the Commissioner's report, the Commissioner has found out that there is an alternate passage for the first respondent/plaintiff to reach his property in S.Nos.267/5 and 267/3b and therefore, the pathway now claimed by the first respondent/plaintiff cannot be claimed as an easement of necessity and also relied upon the judgment reported in (2001) 2 M.L.J. 314 in the case of [G.Kesavan and Ranga Reddy and another] and (1998) 2 M.L.J. 629 in the case of[Mangayarkarasi Vs. Veerapan Ambalam and others ]. The learned counsel also submitted that none of the revenue records proved that there is a pathway which runs through the property assigned in favour of the Chellamuthu Aasari. Hence, the first respondent/plaintiff is not entitled to the relief prayed for. 9. Though the first respondent has been served and his name was also printed in the cause list, he has not entered either in person or through Counsel and the learned Government Advocate, representing the second respondent submitted that he is only a formal party. 10. According to me, the Lower Appellate Court without properly appreciating the scope of the suit filed by the first respondent, erred in allowing the appeal and decreeing the suit. The first respondent/plaintiff is the owner of 90 cents of property situate in https://hcservices.ecourts.gov.in/hcservices/ S.Nos.267/5 and 267/3b. That property is on the northern side and adjoining that property on the southern side, the property in S.No.295/1 is situated. The property in S.No.295/1 is having an extent of 1.02 acres and before sub-division, out of 1.02 acres, 58 cents were assigned to the first respondent under Ex.A5 and that 58 cents is situate on the southern side and in between 58 cents of land assigned to the first respondent and the first respondent's personal land in S.Nos.267/5 and 267/3b, remaining extent of land in S.No.295/1 is situated. Out of the remaining extent, 15 cents of property was assigned to one Chellamuthu Aasari. The assignment order in favour of Chellamuthu Aasari, was not filed in Court and it is seen from Ex.A5, in the assignment in favour of the first respondent/plaintiff as per clause 17, there is a pathway in S.No.295/1. Now, the first respondent/plaintiff claims that pathway runs through the property assigned to Chellamuthu Aasari Admittedly, 15 cents of property was assigned to Chellamuthu Aasari and if really, there is a pathway in that property, the land would not have been assigned to Chellamuthu Aasari, by the Government. 11. Therefore, it can be presumed that in the land assigned to Chellamuthu Aasari, there cannot be any pathway and the pathway may be in existence in other area of S.No.295/1, as S.No.295/1 is having an extent of 1.02 acres and after assignment of 15 cents to Chellamuthu Aasari and 58 cents to the first respondent, 29 cents of land are available and that the pathway may be in existence in that 29 cents. Further, the first respondent/plaintiff wants to have the pathway to reach his property in S.Nos.267/5 and 267/3b. As per the Commissioner's report, the plaintiff is having access to reach the road from his land in S.No.267/5 and 267/3b and according to the plaintiff, he is using the pathway to reach his land in S.Nos.267/5 and 267/3b from the land which was assigned to him by the Government. 12. Admittedly, except the oral evidence of P.Ws.1 to 4, no document was produced to prove that there is a pathway which runs through the property assigned to Chellamuthu Aasari. Further, the first respondent cannot also take advantage of the averment in the written statement that there is Mariamman Pattai in S.No.295/1, to support his claim, as it was not stated that the Mariamman pattai runs from the land assigned to Chellamuthu Aasari. 13. As stated supra, there may be a pathway in the remaining extent of land in S.No.295/1 and we will have to see whether there is a pathway in the land assigned to Chellamuthu Aasari by the Government or not. According to me, if there is a pathway in the land assigned to Chellamuthu Aasari, the Government would not have assigned the land to Chellamuthu Aasari and therefore, the pathway https://hcservices.ecourts.gov.in/hcservices/ must be in existence in other area of S.No.295/1. Unfortunately, this aspect was not properly appreciated by the Lower Appellate Court and the Lower Appellate Court erred in relying upon Ex.A12, to arrive at a conclusion that there is a pathway that runs through the property that was assigned to Chellamuthu Aasari. Further, the first respondent/plaintiff is not entitled to claim any right of pathway from the land assigned to Chellamuthu Aasari, to reach his land in S.Nos.267/5 and 267/3b. 14. As rightly submitted by the learned counsel for the appellant, as per the Commissioner's report, there is a pathway in S.Nos.267/5 and 267/3b for the first respondent/plaintiff to reach the main road and therefore, the first respondent/plaintiff is not entitled to claim the suit pathway as an easement of necessity. Further, as stated supra, the first respondent has not established the existence of the pathway from the property assigned to Chellamuthu Aasari and in the absence of any such proof, the plaintiff is not entitled to the relief prayed for. Hence, the substantial question of law is answered in favour of the appellant and the judgment and decree of the Lower Appellate Court are set aside and that of the Trial Court is confirmed and the Second Appeal is allowed. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sd S.A.No.28 of 2007 To 1. The Principal District Judge, Perambalur. 2. The District Munsif, Perambalur. 1 cc to the Government Pleader, Sr. 50085 1 cc to Mr.N.Anand Venkatsh, Advocate, Sr. 50497 SGL (CO) kk 13/9 https://hcservices.ecourts.gov.in/hcservices/