Lalithamaheswari vs Poomalai Ammal and 2 others

E. Padmanabhan, J.—The first defendant in O.S.No.298 of 1982 on the file of the District Munsif Court, Paramakudi is the appellant in this

Second Appeal. The Second Appeal is directed against the judgment and decree dated 16.6.1983 made in O.S. No. 298 of 1982 on the file of

the District Munsif Court Paramakudi. At the time of admission, the following two substantial questions of law were framed by this Court.

Have not the courts below committed grievous error both on facts and in law in not considering the measurements contained in the sale deeds

Exs.B.1 and A.1 in favour of 1st defendant and plaintiffs husband and also the Commissioner''s reports and Plans Ex.C.1. C.2, C.3 and C.4 which

would show that the plaintiffs claim is wholly unsustainable?

Are not the judgment of the Courts below vitiated by casting the burden wrongly on the 1st defendant when it is incumbent on the plaintiff to

prove that the entirety of the suit property constituted common pathway for the use of both the parties?

For convenience, the parties will be referred as arrayed before the trial Court.

The plaintiff instituted the suit seeking for a declaration that the suit property is the common pathway for Door Nos. 3/131 and 3/130 and for

consequential permanent injunction restraining the third defendant from interfering with the enjoyment of the suit common pathway and restraining

the defendants from putting up any construction thereon.

According to the plaintiff, the suit property is common pathway, that the documents of purchase also show that the suit property is a common

pathway which is used as a common pathway by the neighbours that there is no other pathway, that the suit property has been used from time

immemorial, that the plaintiff and neighbours have prescribed a right, that the defendant is threatening to interfere with such right by threatening to

put up construction across the common pathway and hence the suit,

The first defendant filed a written statement adopted by the second defendant denying the property as common passage, that the dispute portion

is the exclusive property, that patta has been granted in favour of the defendants, that the defendant is entitled to put up construction of his choice,

that the alienation in favour of the third defendant describing a portion of the suit property as common passage is invalid and binding, that the earlier

documents also will not confer such a right and that the claim of prescription is also false and that the plaintiff is not entitled to any reliefs. It was

further contended that the suit is bad for non-jointer of necessary parties and that the plaintiff is not entitled to the relief of injunction or declaration

on the very pleadings.

The plaintiff marked Exs.A1 to A5, while the defendants marked Ex.B1 to B4. The Commissioner''s Plans and Reports have been marked as

Exs.C1 to C4. The plaintiff has examined PW1 and 2 and the defendants examined DWs1 and 2.

The trial Court framed as many as seven material issues and by judgment dated 16th June 1983 decreed the suit holding that the plaintiff is

entitled to easementary right of pathway and granted the consequential relief of injunction,

Being aggrieved the first defendant preferred A.S. No. 141 of 1983 on the file of the District Court, Ramanathapuram at, Madurai. The third

defendant did not prefer any appeal. The lower appellate Court by judgment and decree dated 11.1.1985 dismissed the appeal with costs. The

first appellate Court also held that in the portion A B C D A shown in Ex.C2 the defendants shall not put up any construction and the same shall be

used as common passage and directed Ex.C2 to be appended as part of the decree. Being aggrieved, the first defendant has preferred this Second

Appeal.

Heard Mr. Valliappan, learned counsel for the appellant and Mr. V. Bhiman, learned counsel for the respondent.

According to Mr. Valliappan, there is no reason or basis to declare the entire A B C D A as common passage and the first defendant''s

exclusive right to a portion of the Said A B C D ought not to have been interfered and the two Courts below have misdirected themselves in

declaring the entire A B C D as common passage, when the very documents produced by the plaintiff do not support the same. It was further

contended by Mr. Valliappan that the courts below ought to have excluded the portion of the suit property, which is owned by the first defendant

and only in respect of the remaining portion alone they could have granted the relief of common passage.

As seen from the Commissioner''s Reports A B C D has been shown as the suit land. A B C D is of the width 17 ft inches. The learned

counsel for the appellant vehemently contended that the appellant had not lost her title or right to a portion of the suit property, which she had

validity purchased and her exclusive property ought not to have been declared as part of the passage as no such right has accrued over the

separate property of the first defendant.

It was further contended that the plaintiff has separate access and it is not as if it is an easement of necessity. The learned counsel challenged

the findings of the first appellate Court as well as trial court with respect to the width of the passage, which the two Courts have declared to be a

common passage, namely A B C D.

Per contra, Mr. V. Bhiman contended that the entire A B C D portion has been rightly declared as common passage and no interference is

called for in this respect.

The first appellate Court had proceeded on the erroneous assumption that the entire A B C D A is a common passage or the lane, merely on

the basis that the electricity posts E.P.1, E.P.2 and E.P.3 are noticed by the Advocate Commissioner. The first appellate Court proceeded on the

assumption that the entire A B C D is part of the common passage as according to the defendant no right of passage has been given to the first

defendant under Ex.B1 by the vendor. The learned counsel for the appellant did not dispute the passage but only challenged the width and also

contended that the exclusive property of the first defendant ought not to have been declared as part of the passage.

This Court in fact after hearing expressed that the contesting parties may exclude the portion of the first defendant''s property from A B C D A

portion so that the width of the common passage is kept at the optimum level by excluding the first defendant''s property or at least the first

defendant''s alone. We are not concerned with the eastern portion of E.B.I whether the dispute is in respect of western DE''2 alignment of the

passage. As pointed out by the learned counsel for the appellant as per Ex.B1, the first defendant is entitled to 27 feet east, west, on the northern

side and 24 feet east west, on the southern side.

If the said portion, namely what is purchased by the first defendant under Ex.B1 is excluded from A B C D portion, the appellant/first

defendant has no objection for the remaining portion being declared as common passage. As seen from the Commissioner''s Reports appended to

the decree (Ex.C1) the defendant''s superstructure on the southern side ends at E2. E1 and E2 is the southern side east west wall of the

defendants, which just measures 15 feet 6, inches, while the defendant is entitled to 24 feet east west on the southern side, which means the

defendant''s property extends up to F1, as shown in the Commissioner''s Plan.

In other words at the point F1, the defendant''s property ends. So also on the northern portion in terms of Ex.A1 the first defendant is entitled

to 27 feet east west. A1 the point A, the defendant''s superstructure ends and east west measurement of the northern wall of the defendant''s house

is 16 feet 3 inches, ending with point A, while she is entitled to 27 feet east west on the northern side, which means the first defendant will be

entitled to portion up to the point A1.

Mr. Valliappan, learned counsel for the appellant is well founded in contending that portion A A1 F1 E2 falls within the property purchased by

appellant under Ex.B1 and that portion has to be excluded from A B C D A passage. The documents of title produced and relied upon by the

plaintiff and the common passage referred to in those documents merely refer to the common passage and they do not give the measurements of

the passage such as width or length at a particular place or point of the said common passage.

It is also not in dispute that the entire area was originally owned by same owner. who had alienated portion after portion on either side of the

passage. When the first defendant''s vendor had alienated the property in favour of the first defendant under Ex.B1 with measurements as early as

in 1981 as well as under the earlier documents, it cannot be assumed that the entire A B C D is a common passage nor any document had been

proved to show that A B C D was earlier dedicated as a common pass aged nor any municipal notification treating A B C D A as public street or

a common passage had been placed before the Court.

When the first defendant has acquired the title to the portion A1 F1 E1 J as seen from Ex.B1, it cannot be assumed that part of A1 F1 E1 J is

a passage. The first defendant had established his exclusive title and the disputed portion being A A1 F1 E2. which falls within the exclusive

property of the first defendant. Merely because, the first defendant had not put up construction on the said portion and had kept it for himself as

vacant site, it cannot be assumed that it forms part of the common passage.

The first defendant has no objection for the remaining portion being declared as a passage. It may be that the width of the common passage

shall be reduced considerably. But on that score, the right and title of the first defendant cannot be denied to the disputed A A1 F1 E2 portion of

A B C D.

Mr. Valliappan also rightly contended that the appellate court had wrongly cast the onus on the first defendant to prove the negative, when it is

for the plaintiff to prove the common passage, its existence, its width and the reservation of the same by the original owner.

As already pointed out, as seen from Ex.B1 the first defendant has proved her title. The title of the vendor under Ex.B1 to the portion

conveyed by him in favour of the first defendant is not disputed as she was the owner of the larger property namely, Santhanakrishnan Pillai. Even

as seen from Ex.B1, the vendor had described only a portion of the property excluding Ex.B1 property as common passage. Merely because no

measurement has been given as to the common passage or the width of the passage in Ex.B1 it cannot be assumed that the vendor had alienated a

portion of the common passage.

The approach of the first appellate Court, that while executing Ex.B1 the vendor ought to have mentioned the east west measurement of the

passage as 10 feet 9 inches on the northern side and 8 feet 6 inches on the southern side and in the absence of measurements, the entire portion

has to be taken as common passage, is illegal and a total misdirection and misconception and contrary to law.

When the first defendant''s vendor had title to the entire portion conveyed by him under Ex.B1, merely because, east west measurement of the

eastern common passage had not been set out therein, it cannot be assumed that even a portion of the property conveyed under Ex.B1 forms part

of the common passage. It may be that the width of the common passage may get reduced by excluding the entire land purchased by first

defendant under Ex.B1.

The first defendant had proved her title and admittedly the first defendant''s vendor had title to the entire portion conveyed under Ex.B1 in

favour of the first defendant. Therefore, it follows automatically a portion purchased by the first defendant under Ex.B1 has to be excluded from A

B C D and only the remaining could be declared as common passage.

Mr. Valliappan, learned counsel further pointed out that there is no evidence to show that A A1 F1 E2 portion has been used as of right by

third parties or by the plaintiff or other defendants as part of the A BCD common passage. The evidence in this respect is very scanty and the two

Courts have proceeded on the assumption that the entire portion is being used as part of the common passage, which is not permissible in law. The

Commissioner''s plan also support the first defendant''s/appellant''s claims.

DW 1 in the cross examination claimed that she has got title to the portion EFGH, in terms of deed of conveyance and she had also admitted

that no measurement has been given with respect to the passage. The plaintiff while in the witness box had in effect admitted the title of the first

defendant in respect of the portion A A1 F1 E2 E1. DW 1 has also admitted that the first defendant did not object to the user of the common

passage beyond A1 F1. PW2 is also residing in the other'' side of the same lane, but his evidence is of no assistance

As already pointed out, the first appellate Court had erroneously cast the onus on the first defendant, while it is for the plaintiff to prove that the

entire A B C D is a common passage and even the disputed portion A A1 F1 E2 is part of the passage and the plaintiff and other neighbours have

used the same as a matter of right and prescribed such a common passage by immemorial user.

On a consideration of Ex.B1 and A2 and Exs.C1, C2 and C3 as well as the evidence of PW1 as rightly contended by the learned counsel for

the appellant, the common passage will not take in A A1 F1 E2 portion shown in the Commissioner''s Plan and the same has to be excluded from

the common passage and only the remaining portion alone forms part of the common passage. Therefore, the first question of law has to be

answered in favour of the appellant.

The second question of law also has to be answered in favour of the appellant as the first appellate Court had wrongly cast the onus on the first

defendant, when it is for the plaintiff to prove the entirety of A B C D is a common passage. As already held A A1 F1 B2 forms part of the first

defendant''s property, namely J A1 F1 E1 to which the first defendant has title as seen from Ex.B1 and her vendor''s title also had been admitted

by the plaintiff. The second question of law is also answered in favour of the appellant.

The two questions of law are answered in favour of the appellant. Normally this Court will not interfere with the findings of the courts below.

But in the present case, the two Courts have cast the onus wrongly on the first defendant and they have proceeded on the assumption that the

vacant land left by the first defendant also forms part of the common passage, when she had proved her title to the disputed portion. Normally, this

Court, will not re-appreciate the oral evidence. But in this case, the learned counsel for the appellant was well founded in contending that material

portions of the oral evidence had been omitted to be considered by the two courts below besides the appreciation being perverse. These illegalities

warrant interference in this Second Appeal.

As already pointed out the first defendant had proved her title to J A1 F1 E1 and therefore, it follows that the plaintiff will be entitled to

common passage excluding the said portion. In other words, the judgment and decree of the two Courts below are modified and there will be a

declaration that A1 F1 E2 D C B will be the common passage and the plaintiffs relief of injunction has to be confined only in respect of that

portion.

It is made clear that the disputed portion A A1 F1 E2 forms part of the first defendant''s property and either the plaintiff or other neighbouring

owners have no right to use any portion of A A1 F1 E2 as common passage and the first defendant will be entitled to use the same as part of her

house.

Mr. V. Bhiman, learned counsel for the appellant points out if F1 is fixed as the south western boundary of the first defendant''s house, the

passage will get reduced to 5 or 6 feet, which would be prejudicial to the plaintiff. This Court would not be justified in conferring a novel right on

the plaintiff over the first defendant''s properties. It is for the first defendant to make adjustment for a peaceful living by leaving that such portion,

which would enable the plaintiff and other neighbours to have free access without any obstruction. In the circumstances, the Second Appeal is

allowed in part and the judgment and decree of the two Courts are modified, and there will be a decree in O.S.No.298 of 1982 on the file of the

District Munsif Court declaring that A1 F1 E2 D C B shall be the common passage, which the owners of either side will be entitled to use, and

consequently there will be an injunction only in respect of that passage forbearing the first defendant from putting up any construction. Both parties

shall bear their respective costs throughout.