IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :30-06-2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.407 of 1998 1.Smt.Parvathi 2.K.T.Shanmugam 3.K.T.Shekar 4.K.T.Haldorai 5.K.N.Bellan : Appellants/Defendants vs. K.K.Bellan : Respondent/Plaintiff Prayer: This second appeal is filed under section 100 of the Civil Procedure Code, against the judgment and decree, dated 10.11.1997 made in A.S.No.9 of 1997 on the file of the Sub Court, Ootacamand against the judgment and decree, dated 20.09.1996 made in O.S.No.116 of 1995 on the file of the District Munsif Court, Kotagiri. For Appellants : M/s.Srinath Sridevan For Respondent : Mr.R.Sivakumar J U D G M E N T The defendants, who were successful in the trial Court and lost in the First Appellate Court are the appellants. 2.The respondent/plaintiff filed a suit for declaration that the suit property is a common pathway and he has got right to use the pathway, which is situate eastern side of the defendants' property and for permanent injunction. 3.The case of the respondent/plaintiff was that the property in S.No.684/1 in Naduhatty village was originally having an extent of 60 cents and it was owned by four persons and the said owners https://hcservices.ecourts.gov.in/hcservices/ contributed or donated an extent of 20 cents to the Government for constructing a school and the respondent/plaintiff purchased 5 cents from one of the owners, who was entitled to 15 cents in S.No.684/1 and the respondent/plaintiff has constructed a house and was using the pathway on either side of the house. 4.It was the further case of the respondent/plaintiff that the defendants constructed a small house opposite to the plaintiff's house facing the main road and are preventing the respondent/plaintiff from using the pathway running from the main road to reach his new house and therefore, the suit was filed for declaration and injunction. 5.The defendants/appellants contested the suit stating that there was no pathway as alleged by the plaintiff/respondent and only after getting an ex-parte order of injunction, the plaintiff/respondent attempted to create a pathway and the plaintiff/respondent has no right to use the suit pathway and there is no easementary right available to the plaintiff/respondent and admittedly, the plaintiff/respondent has got access to his house through the school premises and therefore, there is no easement of necessity for the plaintiff/respondent to use the pathway and therefore, the plaintiff/respondent is not entitled to any relief. 6.The trial Court accepted by the contention of the appellant dismissed the suit and the First Appellate Court reversed the findings of the trial Court and allowed the appeal holding that the Commissioner's report specifically mentioned about the pathway and there was no denial to the evidence given by the plaintiff and the plaintiff has let in evidence to prove that only through the suit pathway, the plaintiff can reach his house and therefore, the plaintiff is entitled to the relief prayed for. Aggrieved by the same, the second appeal is filed 7.The following substantial questions of law were framed at the time of admission in the second appeal:- 01.Whether the plaintiff can claim the right to use the pathway by way of discretion without pleading or proving the date of commencement of user? 02.In the absence of any division of estate and without any necessity the easement right could be granted? 03.Whether the Lower Appellate Court can go into the title aspect and grant declaration relief especially court fee is paid under Section 27(c) for only bare injunction? https://hcservices.ecourts.gov.in/hcservices/ 8.Mr.Srinath Sridevan, the learned counsel appearing for the appellants submitted that in the absence of any pleadings relating to the easement of necessity and easement by grant, the plaintiff cannot claim any right of easement of necessity and it is admitted by the plaintiff/respondent that he has got two pathways to reach his house and hence, the suit pathway cannot be termed as easement of necessity and for claiming easement of necessity, the entire extent of the property must be owned by one person and after division, some properties were required for enjoying the other properties and in this case, that was not pleaded and therefore, the Lower Appellate Court is wrong in holding that the plaintiff is entitled to use the pathway. 9.He further submitted that though the plaintiff prayed for declaration of his right to use the common pathway and also prayed for injunction, he paid court fee only for the relief of injunction and no court fee was paid for declaration and therefore, the Courts below erred in granting the relief of declaration. In support of his contention, the learned counsel appearing for the appellants relied upon the following judgments:- 01.1998-3-LW 197, in the case of Basha Reddiar (died) and 4 others vs. Janarthanam and 5 others. 02.(1998)1 MLJ 151, in the case of Nanjammal and others vs. Marappa Gounder and another; and 03.1997(1)CTC 348, in the case of Murugesa Moopanar vs. Sivagnana Mudaliar. 10.On the other hand, the learned counsel appearing for the respondent, Mr.R.Sivakumar submitted that the respondent/plaintiff filed a suit for declaration on the ground that he is also one of the co-owners to the suit pathway and he never claimed any easement of necessity or any other easement rights and the declaration is sought for only to declare that the pathway is a common pathway and that was properly appreciated by the Lower Appellate Court on the basis of the report of the Commissioner. 11.He further submitted that the learned Advocate Commissioner has specifically stated that though in the survey sketch, the pathway was not mentioned, the Advocate Commissioner found that the pathway was not formed recently and it must have been in existence for years and that was the only pathway to reach the plaintiff/respondent house from the main road. Further, the evidence of PW2 also corroborated the Commissioner's report and there was no other contra evidence and hence, the Lower Appellate Court has rightly held that the plaintiff is entitled to declaration. https://hcservices.ecourts.gov.in/hcservices/ 12.He further submitted that admittedly, the suit pathway is in S.No.684/1 and it is the specific case of the respondent/plaintiff that it is a common pathway and the appellants have not come forward to deny the same by producing oral and documentary proof to the effect that the suit pathway passes through their lands or there is no such pathway in existence on the ground. 13.He further relied upon the judgment reported in (2010)2 SCC 689 in the case of Sree Swayam Prakash Ashramam and another vs. G.Anandavally Amma & others and submitted that grant of easement can also be implied and admittedly, S.No.684/1 having an extent of 60 cents was originally owned by four persons and each of them were enjoying 15 cents and they contributed 20 cents for the purpose of constructing a school and the remaining extent was enjoyed by them and in the absence of any proof that the suit pathway was in the enjoyment of the defendants or it is their separate property, the case of the plaintiff has to be accepted and that was rightly appreciated by the Lower Appellate Court and therefore, there is no need to interfere with the findings of the Lower Appellate Court. He further submitted that though the court fee was not paid for the relief of declaration, both the Courts below have granted the relief of declaration and the respondent/plaintiff is prepared to pay the court fee, if so directed by this Court. 14.Heard both sides. 15.According to me, the trial Court without appreciating the case of the respondent/plaintiff held that the there was no pathway in the suit property and therefore, the respondent/plaintiff is not entitled to relief prayed for. Further, having regard to the averments made in the plaint and evidence let in by the respondent/ plaintiff, there is no question of easement of necessity pleaded by the plaintiff/respondent. It is the specific case of the respondent/plaintiff that the suit pathway is a common pathway and he is using the pathway to reach his house and that was prevented by the appellants and therefore, he prayed for declaration and injunction. 16.The respondent/plaintiff did not plead that he is entitled to use the pathway as an easement of necessity and on the other hand, he claimed ownership over the property stating that the pathway is a common pathway to all the parties. 17.To disprove the case of the plaintiff, no evidence was let in by the appellants and even in the written statement, they have not stated that they are the owners of the suit pathway and the plaintiff has no right over the same and it is in their exclusive enjoyment and they also did not let in any oral evidence nor marked any document to show that the suit property was their property and the plaintiff has no right over the same. https://hcservices.ecourts.gov.in/hcservices/ 18.On the other hand, the plaintiff has let in evidence to prove that S.No.684/1 consisting of 60 cents was owned by 4 persons and each of them were enjoying 20 cents and they contributed 20 cents for constructing a school and he purchased 5 cents of property from one of the owners and has put up a construction and he was using the suit pathway, which is a common to all the owners and there is no contra evidence to that effect. PW2 also corroborated the evidence of PW1. 19.Further, the Advocate Commissioner has also stated in his report that the suit pathway must be in existence for years and it was not created recently and it was also specifically stated that the pathway was not mentioned in the survey sketch. 20.According to me, merely because there was mention in the survey plain about the pathway one cannot presume that there was no pathway in existence. Further, in the survey plan one cannot expect the pathway as the same was created by the parties for the convenience enjoyment and admittedly it runs through S.No.684/1, which originally belonged to four persons and therefore, for the convenient enjoyment of the properties, they must have created the pathway and therefore, it was claimed by the plaintiff that it is a common pathway and there is no contra evidence to that. Therefore, the Lower Appellate Court rightly held that the plaintiff has proved the case and he is entitled to declaration. 21.As the plaintiff claimed the relief of declaration on the basis that he is one of the co-owners and the suit pathway is a common pathway, there is no need to plead easement of necessity and necessary pleadings were made to sustain the relief of declaration. Hence, the substantial questions of law 1 and 2 are answered against the appellants. 22.No-doubt, a perusal of the original plaint would prove that no court fee was paid only for the relief of declaration, though declaration relief was sought for. It is settled law that even in a suit for injunction when the plaintiff bases his right on title, the Court has got power to give a finding regarding title when the same is disputed by the defendants and in this case, the plaintiff claimed that he was entitled to use the pathway as of right as it was common pathway and for that purpose, he sought for declaration and even though, there was no specific denial of the plaintiff's right in the written statement, the Court has got every power to give a finding on declaration of title of the plaintiff and therefore, even though the court fee was not paid for the relief of declaration and court fee was paid for the relief of injunction, the court has got every power to give an incidental finding on title and therefore, there is nothing wrong in giving a finding of declaration or granting relief https://hcservices.ecourts.gov.in/hcservices/ of declaration. Therefore, the 3rd substantial question of law is also answered against the appellant. 23.In the result, the judgment and decree of the Lower Appellate Court is confirmed and the second appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar er To 1.The Sub Court, Ootacamund 2.The District Munsif, Kotagiri 3.The Section Officer, VR Section, High Court, Madras. S.A.No.407 of 1998 SP(CO) SRA(30/03/2012) https://hcservices.ecourts.gov.in/hcservices/