IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 31.07.2009 CORAM: THE HON'BLE MR. JUSTICE K.MOHAN RAM Second Appeal No.1042 of 2008 & M.P.No.1 of 2008 1.Srinivasan 2.Kandasamy Naidu .. Appellants/Plaintiffs -Vs- 1.K. Kumarasamy 2.Sundaramurthy .. Respondents/Defendants APPEAL filed under Section 100 of C.P.C against the judgment and decree dated 31.08.2007 passed in A.S.No.42 of 2005 on the file of the Sub-Court, Vellore District confirming the judgment and decree dated 25.04.2005 passed in O.S.No.316 of 1999 on the file of the Additional District Munsif Court, Vellore. For Appellants : Mr. T.M. Hariharan For Respondents : Mr. R. Margabandhu. J U D G M E N T The unsuccessful plaintiffs in O.S.No.316 of 1999 on the file of the Additional District Munsif Court, Vellore are the appellants in the above second appeal. 2. For the sake of convenience the parties are referred to as per their ranking in the suit. 3. The case of the plaintiffs in brief is set out below:- The house bearing door No.55, Thiruvalluvar Street, Tharapadavedu Village comprised in Survey No.536/A1a was purchased by Chinnappa Goundar and Murugagounder under a registered sale deed dated 19.07.1962 bearing Document No.2870/62. This property has access from Thiruvalluvar Street situated on the North through the common passage marked as 'ABCD' in the plaint plan measuring 6 feet East-West, 84 feet North-South. This common passage is shown as the Western boundary of the property. Chinnappa Goundar and Murugagounder sold the said property by a registered sale deed dated 16.08.1972 bearing Document No.2673/72 to one Muniyammal, W/o. Govindasamy Naidu. While purchasing the said property, Muniyammal https://hcservices.ecourts.gov.in/hcservices/ was given the right of passage through the 'ABCD' common passage to have access to her house and also a right in the Well situated in the common passage and right from 1947, the 'ABCD' common passage was kept in common to the house owners of the properties shown in the plaint plan. 4. The said Muniyammal settled the said property under a registered settlement deed dated 21.08.1998 bearing Document No.3266/98 in favour of the first plaintiff and the same is accepted and acted upon. The first plaintiff is in enjoyment of the property including the common passage. 5. The second plaintiff under a registered sale deed dated 09.10.1972, purchased the property bearing Survey No.536/A1a, as shown in the plaint plan from its original owners Jeganathan and Selvaraj. At the time of his purchase the right of passage which was in vogue for several years and with a right in the Well also. From the date of purchase, he is in use and enjoyment of the passage and only through this passage both the plaintiffs can have ingress and egress to Thiruvalluvar Street and other streets. Thus the plaintiffs have perfected their title by prescription to the common passage and are in enjoyment of the property for Well the over statutory period. 6. While so, the defendants have made an opening in their house by making a hole and discharged waste water in the common passage and the entire passage has now become slush. As a result of which, the plaintiffs and their family members cannot come out from their houses and they could not have access and hence the plaintiffs have filed a suit seeking decree for declaring their title for using the passage marked as 'ABCD' in the plaint plan and granting consequential injunction restraining the defendants, their men, agents etc., from interfering with the enjoyment of the plaintiffs and consequently for permanent injunction. 7. The suit was contested by the first defendant, which was adopted by second defendant inter alia contending as follows :- The suit property is not having any access from Thiruvalluvar Street situated on the North through the common passage marked as 'ABCD' in the plaint plan. The houses of the plaintiffs are facing towards the east and the door way of the house bearing door No.55 described by the plaintiffs is situated in the street lying on the Eastern side of their houses and the said street, which is running North to South is also called Thiruvalluvar Street. Though 'ABCD' portion is shown as the boundary to the western side in the sale deed dated 19.07.1962, no right whatsoever, over the passage marked 'ABCD' has been given. But it is alleged that the vendors have conveyed the right of the passage also in the Sale deed dated 16.08.1992. https://hcservices.ecourts.gov.in/hcservices/ Similarly, the case of the second plaintiff that the right of usage of the common passage was given to him by his vendors is not correct. The first defendant herein is owning a house bearing Door No.57, Thiruvalluvar Street, Tharapadavedu and for convenient enjoyment of the property situated on the southern portion of the residential house, the defendant and his predecessors-in-title left the alleged 'ABCD' portion vacant and now the plaintiff lays a false claim over the said portion without any basis and falsely claiming the vacant portion of the defendant as a passage. The plaintiffs have never enjoyed the alleged portion marked 'ABCD' in the plaint plan as a passage and they have got no right, title or interest over the 'ABCD' portion. The allegations that the plaintiffs have perfected title by prescription by their enjoyment for several decades prior to filing of the suit, as they have also perfected easement right by prescription, are all absolutely false and denied by the defendants. The portion marked as 'ABCD' in the plaint plan and shown by the plaintiffs as common passage is an absolute and exclusive passage of the defendants alone and they have got valid right, title and interest over the portion. It is not correct to state that the plaintiffs were discharging the waste water in the common passage. The houses of the plaintiffs are facing towards the Eastern side, which is also called Thiruvallur Street and the plaintiffs have never had access to the suit property and even their predecessors have no access to the suit property as a passage as alleged by the plaintiffs. On the aforesaid pleadings, the defendants prayed for dismissal of the suit with cost. 8.During trial, the trial court framed the following issues: 1)whether the plaint plan marked 'ABCD' portion is the only way for egress and ingress available for the plaintiffs? 2)Whether the suit schedule property belongs to the defendants? 3)Whether the plaintiffs are entitled to seek the relief of declaration? 4)Whether the plaintiffs are entitled to seek the relief of permanent injunction? 5)To what relief? During trial, on the side of the plaintiffs, the first plaintiff was examined as P.W.1 and three other witnesses were examined as P.Ws.2 to 4 and Exs.A-1 to A-15 have been marked. On the side of the defendants, the first defendant was examined as D.W.1 and three other witnesses were examined as D.Ws.2 to 4 and Exs.B-1 to B-20 have been marked. The Commissioner's report, and plans were marked as Exs.C1 https://hcservices.ecourts.gov.in/hcservices/ to C3. 9. The Trial Court on a consideration of the oral and documentary evidence adduced in the case dismissed the suit. Being aggrieved by that, the plaintiffs preferred an appeal before the Sub- Court, Vellore in A.S.No.42 of 2005. The lower Appellate Court in a cursory manner and without considering the materials on record concurred with the findings of the Trail Court and dismissed the appeal. Being aggrieved by that the plaintiffs have preferred the above second appeal. 10. The respondents herein have entered Caveat and hence this Second Appeal was taken for final disposal at the admission stage itself. The above Second appeal is admitted on the following substantial questions of law. Substantial Question of Law: 1. When the western boundary is described as common passage under Exs.A1, A2, A3, A15 and A13, do not the vendees / settlee acquire the right of using the common passage especially when the respondents have concealed their documents of title and when Ex.B1 is found not to relate to the suit property? 2. Whether the right of user by grant in a document cannot be established independent of the claim of easement by necessity? 3. Has not the Appellate Court failed to perform its duty as the final court of fact in dismissing the Appeal almost mechanically even without a proper discussion of the pleadings or any of the documents produced? 11. Mr. T.M. Hariharan, the learned counsel for the appellants submitted that the Trial Court having rightly found that the suit property has been properly described and there is no dispute regarding the identity of the suit property has failed to give effect to its own findings and has erred in dismissing the suit; the Trial Court failed to see that the Erikalvai lies to the east of the properties of the appellants and the boundary description occurs even from the year 1962 and in such circumstances the burden is very heavy on the respondents to show as to how a street came into existence in the east and the respondents have failed miserably in discharging the burden in this regard. According to the learned counsel, the rejection of the claim of the appellants on the ground that in the earliest document Ex.A1, the common passage is only shown as the western boundary, without conferring any title therein is wholly erroneous and proceeded on a total lack of understanding of Ex.A1, the pleading in the suit and the evidence on record. The courts below failed to see that Exs.A13 and A15 definitely convey the right https://hcservices.ecourts.gov.in/hcservices/ of access through the common passage and a share therein in favour of the second appellant. 12. Further the learned counsel for the appellants submitted that the reliance on the Revenue Records after suit to hold that the defendants are in enjoyment of the suit passage is clearly erroneous. According to the learned counsel since not only Exs.B6, B16 and B17 are after the suit, but they cannot convey any title to the suit passage described by four specific boundaries in the suit. When the passage is identified by four boundaries and is established as an existing common passage, a reference to a Survey Number in Commissioner's Plan and report cannot create title in favour of the respondents. The learned counsel further submitted that the trial court erred in brushing aside the evidence of P.Ws.3 and 4 and that the reasons assigned are wholly erroneous. 13. The learned counsel further submitted that the reasoning of the trial court that the suit claim is based on an easement of necessity is erroneous, when the suit is based on a grant under documents of title. Even if a passing reference has been made on easement of necessity, that will not preclude the appellants from claiming the right on the basis of the documents of title as a grant. 14. The learned counsel contented that the lower Appellate court being the final court of fact is duty bound to consider the entire materials on record, pleadings in the suit and documentary evidence, etc., and independently apply its mind to such materials and record independent findings and reasons. Even while confirming the findings of the trial court, it is the legal duty of the first appellate court to consider the evidence on record. But in this case, the lower court has failed to discharge its legal duty as a first Appellate court and its judgment cannot be considered to be a judgment at all. 15. In support of the aforesaid contentions, the learned counsel relied upon a decision of the learned Single Judge of this court reported in 1997 (III) CTC, 461 (K.Pichai Mohideen v. M.K.M. Abdul Hakkim). In the said decision in para-19, it is observed as under "19. Under Exs.A-1, there is specific grant. Apart from describing the boundary on the south as the boundary, Ex.A-1, specifically mention 'tHp eilg;ghij ghj;jpa';fSk; 'tHp eilg;ghij' is mentioned as 11' East to West. It is true that such words are not found under Ex.A-3. But when a property is sold showing boundary as the common pathway, the presumption is that the person who purchased the property with a boundary abutting the property is https://hcservices.ecourts.gov.in/hcservices/ entitled to have access through the boundary namely the pathway." 16. Countering the aforesaid submissions, Mr. Margabhandu, learned counsel for the respondents submitted that though in Exs.A1, A2, A13 and A15 the 'ABCD' portion is referred to as a common passage the word "Common Passage" will not mean that it was common to the predecessors-in-title, their men and agents, whereas it will refer only to the common right of the defendants, their brothers and pangalis. The learned counsel submitted that admittedly in those documents no express right of way is given over the common passage but has been shown only as a boundary; the plaintiffs cannot claim that they have been given a right to use the common passage. The learned counsel further submitted that when the existence of an alternative way on the east of the houses of the plaintiffs which is also called as Thiruvalluvar street running north to south has been established from the commissioner's report and when an alternative way is available to the plaintiffs they cannot claim easement of necessity. The learned counsel further submitted that it is not the case of the plaintiffs that the property belonging to the defendants and the predecessors-in-title and the property belonging to the plaintiffs and the predecessors-in-title, were never owned by a common ancestors. Therefore the question of easement of necessity does not arise. The learned counsel stated that the plaintiffs have not filed any objection to the Commissioner's Report and Plan. 17. The learned counsel for the respondents further submitted that the trial court has considered the entire materials on record and have recorded clear findings of fact supported by reasons and as such, when the lower Appellate court has concurred with the findings, it is not necessary for the lower Appellate court to write an elaborate judgment. The learned counsel submitted that no question of law much less any substantial question of law arises for consideration in the above second appeal. 18. I have carefully considered the aforesaid submissions made by the learned counsel on either side, perused the judgments of the courts below and the materials available on record. 19. At the outset it is to be pointed out that the trial court has not framed the vital issue that arose for consideration in the above suit, namely, whether the plaintiffs are entitled to claim any right of way over the common passage as a grant under Exs.A1 and A2. The trial court overlooked the fact that the plaintiffs have only made a passing reference relating to the easement of necessity. The trial court on a consideration of the recitals in Exs.A1, A2, A3, A13 & A15 has held that 'ABCD' portion has been only shown as a boundary but no right of passage over 'ABCD' common passage has been purchased by the predecessors-in-title or by the plaintiffs. The trial court https://hcservices.ecourts.gov.in/hcservices/ has not properly considered the recital describing the passage as a common passage. The aforesaid reasoning of the trial court is directly contrary to the decision reported in 1997 (III) CTC 461 (K.Pichai Mohideen v. M.K.M. Abdul Hakkim). In this decision, the learned Judge of this court has held that when a property is sold showing boundary as the common pathway, the presumption is that the person who purchased the property with a boundary abutting the property is entitled to have access through the boundary namely the common pathway. 20. To get over this, the learned counsel for the respondents strenuously contented that this common passage is common to the defendants, their brothers and pangalis and other predecessors-in- title only, and it is not common to the plaintiffs or their predecessors-in-title. But, it is pertinent to point out that no such plea has been raised anywhere by the respondents before the courts below. If earlier, 'ABCD' passage has been described as common passage belonging to the family of the defendants and their predecessors-in-title such a plea would have been raised in their written statement. But it has not been done so. Therefore, I am unable to countenance the aforesaid contentions put forth by the learned counsel for the respondents. 21. As rightly contented by the learned counsel for the appellants, the existence of 'ABCD' common passage is not in dispute, its identity is also not in dispute and only question that should have been considered is as to whether the appellants have been given the right of way as a grant in Exs.A1 and A2. As pointed out by me in the earlier part of the judgment, the trial court has not framed any such specific issue, and it has resulted in the trail court committing an error of law. In my considered view, the trial court has mixed several other irrelevant facts and taken into consideration mainly the Commissioner's report and plan which will not help to decide the above main issue. If the trial court has properly considered the recitals in Exs.A1, A2 and other connected title deeds and applied the correct legal principles such mistakes would not have been committed. As far as the lower Appellate Court judgment is concerned, as rightly contended by learned counsel for the appellants, the judgment of the lower Appellate Court cannot be considered to be a judgment at all. 22. Order 41 Rule 31 CPC makes it incumbent on an Appellate court to set down distinctly the points to decide the appeal and to record its reasons for the decisions it arrives at, on each and all of the points. It is mandatory on the Appellate court to independently weigh the evidence of the parties and consider the relevant points which arise for adjudication and bearing of the evidence on those points. Even where a trial court's judgment is exhaustive and well written, the Appellate court, if it confirms the https://hcservices.ecourts.gov.in/hcservices/ judgment, there should be enough to show that the court of Appeal has considered it fully and formed its own opinion. But where a judgment of the lower appellate court does not go fully into the reasons for affirmance then it is not a proper judgment. I am of the considered view, that the lower Appellate court in this case has not discharged its duty as contemplated in Order 41 Rule 31 CPC and it is to be pointed out that the lower Appellate court has not considered the evidence on record and has not recorded its independent reasons while concurring with the findings of the trial court. Hence for the aforesaid reasons this court is compelled to interfere with the findings of the courts below. Accordingly, the substantial questions of law are answered in favour of the appellants and against the respondents. The second appeal is allowed. Consequently, connected Miscellaneous Petition is closed. However, there will be no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ars To 1. The Sub-Court, Vellore 2. The Additional District Munsif, Vellore. 3. The Section Officer, V.R.Section, High Court, Madras - 104. + 1 cc to Mr.T.M.Hariharan,Advocate,SR.33512 S.A.No.1042 of 2008 & M.P.No.1 of 2008 GV(CO) EM/25.8.09 https://hcservices.ecourts.gov.in/hcservices/