Kaliappan @ Chinnakaliappan vs Chidambaranthan Gounder

T. Mathivanan, J.—Challenging the judgment and decree dated 10.9.2001 and made in A.S. No. 63 of 2000 on the file of the Learned Subordinate Judge, Bhavani reversing the judgment and decree dated 9.6.2000 and made in O.S. No. 161 of 1997, the Plaintiff has approached this Court by way of this second appeal.

The factual matrix of the case of the parties to the appeal are detailed as under;

The suit is instituted by the Plaintiff as against the Defendant;

to declare the Plaintiff''s easement right over the suit property.

to grant an order of permanent injunction restraining the Defendant, his men, agents, assignees etc., from interfering with the Plaintiff speaceful enjoyment of the suit cart track.

Out of the total extent of 2.89 acres of his ancestral property comprised in S.F. No. 41/A of Ennamangalam Village, the Plaintiff got 1.44 1/2 cents on the northern portion, of which, the Plaintiff and his minor son had sold an extent of 0.72 � cents to one Siddha Gounder, son of Makkapalani Gounder on 14.11.1972 only in common without having boundaries. Even prior or after the above sale, the Plaintiff had been in peaceful possession and enjoyment of his property only on convenient sake and not by any regular partition. After the death of Siddhappa Gounder his legal representation viz. Iyyasamy and Murugesan and the Plaintiff had been in peaceful possession and enjoyment of their respective shares by providing cart track to Plaintiff. The Plaintiff has been using the suit cart till now.

The said Iyyasamy and Murugesan had sold their shares in the suit common survey land to the Defendant on 26.2.1997 with specific boundaries without mentioning the existence of the suit cart track. The Plaintiff is having only this cart track to have access to his land and excepting this one, no other alternate is available through the Defendant''s land.

When the Plaintiff was carrying manures by a cart to his land, the Defendant without having any valid reason was trying to disturb the Plaintiff''s, users of the suit cart track. The Plaintiff has been using the cart track from the north south road, to reach his land. Hence the Plaintiff was constrained to filed this suit for declaring his easementary right over the cart track and also for permanent injunction.

The Defendant has contended that he and his vendors had/have been in peaceful possession and enjoyment of the property adjoining to north south road and the Plaintiff has been in peaceful possession and enjoyment of the property to the east of the property enjoyed by the Defendant and his vendors. There was no cart track existing as alleged by the Plaintiff. The commissioners report and plan depict the real physical features of the suit property subject to the objections raised by the Defendant. The father of the vendors of the Defendant and the Plaintiff had orally partitioned their properties comprised in old S.F. No. 41 A of Ennamangalam Village in the month of April 1973 itself, and in the said partition, the western portion was allotted to the father of the vendors. The vendors of the Defendant had sold their properties to the Defendant on 26.11.1997 with all defined boundaries, after the demise of their father. Hence, the Defendant has been in possession and enjoyment of his property. The suit is filed vexatiously as if east west cart track is in existence.

In his additional written statement, the Defendant has added that the pleadings and the prayer of the plaint are contrary and are not in consonance with the provisions of law. There is no vinculum juris in the suit and as such it is not maintainable. No suit cart track, is in existence as alleged by the Plaintiff in the land of the Defendant. The land of this Defendant which is comprised in R.S. No. 660/1 and 660/3 of Ennamangalam Village is Manavari land. If really the alleged suit cart track was in existence and enjoyed by the Plaintiff, the length of the alleged suit cart track could have been given by the Plaintiff.

Based on the pleadings of the parties to the suit, the trial Court has formulated three issues and one additional issue for the better adjudication of the suit.

Whether the Plaintiff is entitled to the relief of permanent injunction?

Whether there is cause of action to institute the suit?

To what relief the Plaintiff is entitled?

Additional issue, formulated on 5.6.2000, whether the Plaintiff is entitled to the easement right.

In order to establish their respective cases, the parties to the suit went for trail. The Plaintiff and one Krishnan were examined as P.W.1 and P.W.2. During the course of their examination A1 to A3 were marked. On the other hand the Defendant and One Iyyasamy, who is one of the vendors of the Defendant were examined as D.W.1 and D.W.2. No documentary evidence was adduced on behalf of the Defendant, but the commissioners report and the plan were marked as Exhibits C-1 and C-2.

On appraising the evidences both oral and documentary and on considering the related facts and circumstances, the trial Court had found that:

(a). on the basis of the Commissioners sketch under Exhibit C-2, it appears that there might be a cart track in the suit property.

(b). the properties of the Plaintiff and the Defendant were originally belonged to the ancestors of the Plaintiff and thereafter the Plaintiffs brother had sold the property to the Defendant. Accordingly partition was also effected.

(c). on the basis of the Commissioners report it is understood that the cart track is in existence in the Defendants property. The Defendant has not proved that alternative cart track is available. Under this circumstance, the Plaintiff is entitled to the relief of easement by necessity. Accordingly, the trail Court had decreed the suit on 09.6.2000 as prayed for by the Plaintiff.

Impugning the judgment and decree of the trial Court, the Defendant had preferred the first appeal in A.S. No. 63 of 2000, on the file of the Subordinate Court, Bhavani at Erode District.

On hearing both sides, and on scrutinising the available materials on record the First Appellate Court has found that:

(a). No legal evidence is available to show that a permanent cart track is in existence.

(b). The Plaintiff has not come forward with clean hands, as he had subsequently amended the prayer of the suit, to suite his own convenience and to modulate his stand.

(c). Exhibits A-1 and A-3 sale deeds do not have any reference to show that the suit cart track was provided for the use of the Plaintiff.

(d). The claim of the Plaintiff that he is having right of easement by necessity without proving the existence of the alleged cart track is in total negation of the law of Easements.

Ultimately, the first appellate Court has reversed the judgment and decree of the trial Court dated 9.6.2000 and dismissed the suit in O.S. No. 161 of 1997.

Challenging the judgment of the first appellor. Court, the Plaintiff has approached this Court by way of this second appeal. When the second appeal came to be admitted, the following substantial question of law was formulated;

Whether the lower appellate Court has properly appreciated and applied the principles to find out whether the Plaintiff is entitled to claim the easement of necessity and prescription, in view of the facts and circumstance of the present case.

The alleged cart track said to have been in existence in the land of the Defendant alone is the subject matter of the suit as stated in paragraph No. 4 of the plaint. In accordance with the submissions of the learned Counsel for the Appellant/Plaintiff, the claim of the Plaintiff is only the easement of necessity in the alleged cart track, to have access to his land. Exhibits A-1 and A-3 are playing some important role to ascertain the claim of the Plaintiff. Originally the plaint was filed on 31.3.1997, with a prayer for granting an order of permanent injunction. After two years and nine months, the Plaintiff has chosen to amend the plaint and in pursuant to the order dated 17.12.1999 and made in IA. No. 1012 of 1999, the plaint was amended and thereby the plaint prayer portion "(a)" was inserted for the relief of declaration of Plaintiffs easementary rights over the suit property. From the conduct of the Plaintiff, it could be inferred that originally, the Plaintiff was not intending to have the declaratory relief of easementary right over the cart track. As adumbrated supra, only after two years and nine months, the Plaintiff had thought it convenient to amend the plaint for the relief of declaration of easementary right over the suit cart track.

The admitted facts between the parties to the suit are:

Out of the total extent of 2.89 acres comprised in S.F. No. 41 /A at Ennamangalam Village, the Plaintiff got 1.44 1/2 acres.

out of 1.44 1/2 acres, 0.72 1/4 cents in the same survey number was sold to one Siddha Gounder, by the Plaintiff and his minor son under a registered sale deed dated 14.11.1972 (Exhibit B-1 is the certified copy of the sale deed). No boundaries are specified in the sale deed. Even after the sale no regular partition was effected between the Plaintiff and Siddha Gounder.

After the demise of Siddha Gounder, his sons one lyyasamy and Murugesan had sold ''the property which was purchased by their father in favour of the Defendant herein on 26.2.1997. Exhibit A-3, is the certificated copy of the sale deed. The sale under Exhibit A-3 was effected with specific boundaries. Exhibits A-1 and A-3 do not have any reference with regard to the existence of the alleged suit cart track. This has been admitted by the learned Counsel appearing for the Appellant/Plaintiff. It is significant to note here that in Exhibit A-3 specific boundaries are given to the property sold to the present Defendant.

The Plaintiff in his evidence has stated that he had been using the cart track and that his user was not objected either by Siddha Gounder or by his legal representatives, lyyasamy and Murugesan, until the property was sold to the Defendant. He has also deposed that excepting the alleged cart track no other cart track is available to reach his property to take manure by cart or to take the bullocks to plough the land. Exhibits C-1 and C-2 are the Commissioners report and plan. It is significant to note here that the Plaintiff had not filed any objection to the Commissioners report under Exhibit C-1. The Plaintiff claims that the cart track measuring 30ft in length and 1 Oft in breadth runs through the land of the Defendant.

In the plaint the Plaintiff has stated as if he and his minor son had sold the property measuring 0.72 � cents to Siddha Gounder under Exhibit A-1 sale deed on 14.11.1972. In his cross examination, he would state that his elder brother had sold the property under Exhibit A-1 sale deed and the same was not known to him for the past 25 years. It is his candid admission in his cross examination that he did not state in the plaint as to how long he had been in the user of the alleged cart track. It is also admitted by him that till date no partition was effected in respect of his land and the land of the Defendant. He has also denied the suggestion that an oral partition was effected in the year 1972. On the basis of the testimony of P.W.1, it is presumed that till the date of filing of the suit no partition was effected in respect of the land of the Plaintiff as well as the land of the Defendant. However he claims easement of necessity in respect of the alleged suit cart track. P.W.2 one Krishnan says, that he was having land on the northern side of the Plaintiff''s land and that the Defendant''s land could be reached only through the land of the Defendant and that no other cart track was available excepting the cart track which was in question in the suit. He would state further that the Plaintiff had always been using the cart track to reach his land.

According to the evidence of the Defendant (D.W.1), the Plaintiff''s elder brother had sold the property under Exhibit A-1 sale deed, in favour of Siddha Gounder in the year 1972 and after the purchase of the land an oral partition was effected between the Plaintiff''s elder brother and the vendee, Siddha Gounder in the year 1973. He would state further that at the time of oral partition he was present along with other mediators, and as per the oral partition, the western portion was allotted to Siddha Gounder and the eastern portion was allotted to the Plaintiff. He has also stated that at the time of partition no cart track was granted in favour of the Plaintiff to reach his land. The Defendant has also stated in his evidence that two days prior to the filing of the suit, the Plaintiff had cut some of the palmera leaves and subsequent to that the Plaintiff had filed the suit against him. He has specifically deposed that a partition was effected between Siddha Gounder and the elder brother of the Plaintiff and that he had only purchased the property with specific boundaries. He has also deposed that there was no permanent cart track in his land to reach the land of the Plaintiff.

D.W.2, Iyyasamy, is one of the vendors of the Defendant. He says that at the time of purchase of the land by his father Siddha Gounder from the elder brother of the Plaintiff, it was purchased in common and no specific boundaries were specified in the sale deed. But after the purchase of the land an oral partition was effected between his father and the elder brother of the Plaintiff in the presence of panchayatars. Accordingly, the eastern portion was allotted to the Plaintiff and the western portion was allotted to his father Siddha Gounder. He has also specifically deposed that at the time of partition no cart track was allotted for the use of the Plaintiff to reach his land. He would state further that in the year 1997, he along with his brother had sold the property to the Defendant under Exhibit A-3 with specific boundaries. Even at. that time also there was no cart track on the northern side of his land and that the Plaintiff had never been using the alleged cart track to reach his land.

As per the case of the Plaintiff no partition was effected and still he has been using the alleged cart track to take his cart and manure to his land which is located on the eastern side of the Defendant''s land.

On the basis of the case of the Plaintiff, a prime question is arisen as to whether a co-owner can claim the right of easement by necessity over the other co-owner''s land?

Before answering the question it may be better to have reference to Exhibits C-1 and C-2 viz. Commissioners report and plan. In Exhibit C-1 report, the Commissioner says that as shown in Exhibit C-2 rough sketch in between the points "B" and "C" he had found bullock carts tyre mark in the breadth of 10ft. He has also stated that he had found bullock cart tyre marks at the point "G" i.e. on the bund which separates the land of the Plaintiff and the Defendant. It is pertinent to note here that at the point of "B" i.e. he had found that three palmera saplings were cut and removed and the sand was found to have been levelled. He had also seen the trunk of the palmera saplings by the side of the point "B". It shows that only recently, the three palmera saplings were cut and removed so as to enable the bullock cart to be taken to the land of the Plaintiff. From Exhibit C-1, it appears that the cart track was temporarily made and if the cart track was found to have been in existence permanently, then the palmera saplings would not have been grown up at the height of 4 ft.

It is also significant to note here that the Plaintiff (P.W.1) has deposed that for the past 25 years, he was not aware of the sale of the land in favour of Siddha Gounder by his elder brother. The evidence of P.W.1 as well as the averments of the plaint are seemed to be in contradiction with each other, in other wards, this Court can say that the evidence of P.W.1 (Plaintiff) is not in consonance with his own pleadings. If really he had been in the user of the cart track, definitely, he would have stated the same in his plaint and he would have prayed for the relief of right of easement even at the time of filing of the suit. As already discussed in the opening paragraph, after 2 years and 9 months he had chosen to amend the plaint to suite his own convenience, claiming the easement of necessity over the alleged cart track.

In paragraph No. 16, of the trial Courts judgment, it is observed that out of 1.44 � acres, the elder brother of the Plaintiff had sold 0.72 � acres in favour of Siddha Gounder in common without having partitioned the property. But this fact has not been stated in the written statement by the Defendant and it has been admitted by D.W.1 in his evidence.

The learned Counsel appearing for the Appellant while advancing his arguments has drawn this Court''s attention to paragraph Nos. 17 to 23 of the trial Courts judgment. In paragraph No. 17, the trial Court has observed that though the Plaintiff had stated that even after the sale of the property under Exhibit A-1, till the date of filing of the suit, no partition was effected. From the evidence of D.W.1 i.e. the Defendant, it appears that after the sale was effected, the properties were partitioned in equal moities and that the Plaintiff as well as the Defendant have been in possession and enjoyment of their respective shares. The trial Court has also observed that it is presumed that the properties would have been partitioned either between the Plaintiff and the Defendant or between their predecessors in title.

In Exhibit C-2 Commissioners plan, the Commissioner has stated that in the portion marked as P2, cow dung manure were found to have been dropped in 20 places. On the basis of Exhibit C-2 Commissioners plan, the trial Court in paragraph 20 of its judgment has observed that on the basis of the cow dung manure found in 20 places at portion P2, in the Plaintiff''s land, it would be presumed that there might be cart track between the point "B" and "C". It is also significant to note here that the Commissioners report and plan (Exhibits C-1 and C-2) depicts that at the point "A" i.e. at the entrance of the so called cart track a ditch was found to have been filled up so as to enable the cart to be taken over to the Plaintiff''s land.

The learned Counsel for the Appellant has also drawn the attention of this Court to paragraph 11 and 12 of the first appellate Courts judgment. In paragraph No. 11 and 12, the first appellate Court has found that the Commissioner in his report did not say that there was permanent cart track and it has also found that no permanent cart track was in existence on the land of the Defendant as well as on the Plaintiff''s land. The first appellate Court has also found that the Plaintiff has not filed this suit with clean hands, and that Exhibits A-1 and A-3 did not have any reference to show that there was cart track as alleged by the Plaintiff. However, the learned Counsel for the Appellant would submit that excepting the cart track no other alternative cart track is available to reach the Plaintiff''s property and hence, it has become necessary for the Plaintiff to amend the plaint for the relief of right of easement by necessity. He has also submitted that P.W.2 has also supported the case of the Plaintiff that the Plaintiff was using the cart track to take manure to his land through bullock cart.

In order to substantiate his arguments he has placed reliance upon the decision in Hero Vinoth (minor) Vs. Seshammal, In paragraph No. 28, it is held that at p. 129 of MLJ:

The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication, in either case it will not amount to an easement of necessity u/s 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute. In fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision u/s 41 of the Act which is applicable only to easement of necessity arising u/s 13.

In paragraph No. 29, it is held that;

An easement by grant does not get extinguished u/s 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement.

The learned Counsel for the Appellant has also made reference to the decision in Murugesa Moopanar Vs. Sivagnana Mudaliar, . In this case the scope and amplitude of Section 13 of the Indian Easement Act has been dealt with. At paragraph No. 13, this Court has held that;

Section 13 of the Indian Easements Act deals with easement of necessity. An easement of necessity can arise only when there is a cessation of common ownership. It arises where both the servient and dominant tenement were in common ownership and by disposition, there was disintegration of the tenements. It is also well settled that easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more tenements and any of those is to be situated that it cannot be enjoyed at all without certain privilege on another such tenement. When there is an impossibility of enjoyment an implied grant or reservation will be presumed in favour of the person holding the former tenement. It is also settled law that the creation of easement of necessity is an outcome of the prior relationship between the tenements.

This Court has carefully gone through the above cited decision and is of view that this decision is not in favour of the Plaintiff but it is in favour of the Defendant''s case. The learned single judge of this Court has correctly observed that an easement of necessity can arise only when there is a cessation of common ownership. The learned judge has also observed that easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more tenements and any of those is to be situated that it cannot be enjoyed at all without certain privilege on another such tenement.

On coming to the instant case on hand the Plaintiff has contended that no partition was effected even after the sale of the property in favour of Siddha Gounder and thereafter in favour of the present Defendant. On other hand the Defendant has contended that properties of the Plaintiff as well as the Defendant were orally partitioned in the year 1973. It has been ratified by D.W.2, who is one of the vendors of the Defendant. As contended by the Plaintiff, if the properties are not partitioned or divided between him and the Defendant, he cannot claim the right of easement by necessity over the alleged cart track as contemplated u/s 13 of the Indian Easements Act.

The learned Counsel for the Appellant/Plaintiff in order to have support of his case has also placed reliance upon the decision in Sree Swayam Prakash Ashramam and Another Vs. G. Anandavally Amma and Others, . In this case a Division Bench of Hon''ble Supreme Court of India has held that, easement of necessity involves an absolute necessity and if there exists any other way there can be no easement of necessity.

On the other hand the learned Counsel for the Respondent/Defendant while advancing his arguments has drawn the attention of this Court to paragraph 7(a) of the plaint. In paragraph No. 7(a) the Plaintiff has stated as follows;

The alleged suit cart track is necessary and must to reach the Plaintiff''s land through the suit cart track. The Plaintiff is also entitled to have the easement of right over the right as easement by prescription and easement by necessity.

In this connection the learned Counsel for the Respondent/Defendant has adverted to that since the Plaintiff had pleaded for the easement by prescription and easement by necessity, he should have stated as to how long he had been using the alleged suit cart track. He has also added that no evidence is available on the side of the Plaintiff to support the claim of easement by prescription. He has also contended that since the Plaintiff had contended that partition was not effected between the Plaintiff and the Defendant, the easement of necessity would not arise and therefore, the judgment of the first Appellant Court need not be interfered with.

He has also made reference to Exhibit A-1 and A-3. With regard to Exhibit A-1 he would submit that as per the contention of the Plaintiff he had sold an undivided share in favour of Siddha Gounder. In connection with Exhibit A-3, he would submit that Exhibit A-3 did not have any reference to show that the Plaintiff was allowed to use the land of the Defendant to have access to his land. He would submit that the finding of the trial Court is merely based on presumption, surmise and gesture.

Further the learned Counsel for the Defendant has made reference to Section 13(a), (c) and (e) of the Indian Easements Act. Section 13 reads as follows;

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

(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

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.

In this regard he would submit that since the Plaintiff had contended that no partition was effected till the date of filing of the suit, he is not entitled for the relief of easement by necessity.

In order to substantiate his arguments, he has placed reliance upon the decision in Bachhaj Nahar Vs. Nilima Mandal and Another, . In this case a Division Bench of Supreme Court headed by His Lordship Mr. Justice R.V. Raveendran has instructed the Courts not to breach the fundamental rules of the Code of Civil Procedure. It is held that the CPC is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to flout the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.

In paragraph No. 12 it is held that;

The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.

In paragraph No. 10 it is held that;

The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the Plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:

(i). No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the Court.

(ii). A Court cannot make out a case not pleaded. The Court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii). A factual issue cannot be raised or considered for the first time in a second appeal.

In paragraph No. 20, the Apex Court has held that;

The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the Plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the Plaintiff has to plead that his dominant tenement and Defendant''s servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a Court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence.

As observed by the Supreme Court of India in the above said judgment, for claiming a easement of necessity, the Plaintiff has to plead that his dominant tenement and the Defendant''s servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used.

In the instant case on hand though the Plaintiff had contended in the pleadings of the plaint that he along with his minor son had alienated 0.72 1/4 acres in favour of Siddha Gounder, in his evidence he has stated that his elder brother had sold the said extent of land in favour of Siddha Gounder. In this connection a question is arisen that; if his elder brother had sold the property to Siddha Gounder, why it should not have been stated in the plaint? Another question is also arisen as to why the Plaintiff has chosen to plead that he along with his minor son had alienated the property in favour of Siddha Gounder. It is the case of the Plaintiff that an undivided portion of 0.72 1/4 acres was alienated under Exhibit A-1 sale deed. Again the heirs of Siddha Gounder viz. Iyyasamy and Murugesan have transferred their property in favour of the present Defendant under Exhibit A-3 sale deed. It is a specific case of the Plaintiff that till the sale of the property, no partition was effected. Therefore, it is thus clear that the ingredients for the relief of easement by necessity is absent in the case of the Plaintiff. Hence as contemplated u/s 13 of the Indian Easement Act, the Plaintiff cannot claim the relief of easement by necessity as he had claimed that the dominant tenement as well as the servient tenement have not been partitioned till the filing of the suit.

The learned Counsel for the Respondent/Defendant has also submitted that as per the case of the Plaintiff the alleged cart track was in existence and he had been using the cart track to reach his property. He has also added that as depicted in Exhibits C-1 and C-2 viz. Commissioners report and plan, no permanent cart track was in existence for the use of the Plaintiff and that it also appear from the Exhibits C-1 and C-2 that two days prior to the filing of the suit, the Plaintiff had cut and removed the palmera saplings and also filled the ditch with sand, so as to take the bullock cart to his land with cow dung manure. Since no legal evidence is available to support the case of the Plaintiff, the relief cannot be granted as decided in Bachhaj Nahar v. Nilima Mandal and Anr. (supra).

The term easement has been defined u/s 4 of Easements Act. Section 4 reads as follows;

Easements " defined - 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.

It may be significant to mention here that in paragraph No. 23 a question has been raised as to whether a co-owner can claim easementary right in respect of the land enjoyed by him as co-ownership property? It may also be significant to note here that the Plaintiff has claimed that he is the co-owner of the property as the dominant tenement as well as the servient tenement have not been severed. In this connection, it may be relevant to refer the decision in Vasudeva Prabhu v. Madhava Prabhu AIR 1993 Ker 68 at 73, 74. In this case the maxim'' "Res suanemini servit has been employed. It is held that;

No one can have servitude over his property. Servitude includes not only profits a prendre but also easement. Both these rights can be claimed only in respect of land belonging to another. In the case of easement there may be dominant and servient heritage. It pre-supposes the existence of two owners, one dominant and the other servient. These requirements are well noticed in the definition of ''easement'' u/s 4 of the Easement Act. The words ''not of his own'' contained in the definition has special significance, for, no person can have under any circumstances a right of easement on his own land. The reason is that all acts done by him in respect of the property are acts done in exercise in his right as owner of the land. This reason is equally applicable in the case of the co-ownership property where also the acts done by him is in exercise of his right as one of the owners of the land.

As observed in Pravabati Roy and Another Vs. Dwijendra Lal Sengupta and Another,

If a party claiming easement of necessity can establish that for effective user of a property in the ordinary way for its designed purpose the right of easement over a particular passage is essentially necessary.

In so far as the present case on hand is concerned, it is obvious that the Plaintiff has claimed the relief of easement by necessity. It is pertinent to note here that the Plaintiff and the Defendant are in joint possession of the dominant tenement as well as the servient tenement as observed in the foregoing paragraphs. The right of easement by necessity can be claimed only in respect of the land belonging to another. Under this circumstances the Plaintiff is not entitled for the relief of easement by necessity as he has miserably failed to establish his case and therefore, the appeal is liable to be dismissed after confirming the judgment and decree of the first appellate Court.

In the result the second appeal is dismissed. The judgment and decree dated 10.9.2001 and made in A.S. No. 63 of 2000 on the file of the Learned Subordinate Judge, Bhavani is confirmed. No order as to costs.