M. Singama Reddiar vs S. Eramallu Gounder

V. Bakthavatsalu, J.—The plaintiff is the appellant. The, plaintiff filed the suit for declaration in respect of cart track and for mandatory

injunction directing the defendant to remove obstruction place in the said passage. The case of the plaintiff is as follows:

An extent of 4 cents in S. No. 17/5 out of 9 cents belongs to Mathi Chettiar. He purchased the same under sale deed dated 2.12.59. The plaintiff

purchased an extent of 2 cents on the South out of four cents under sale deed dated 21.11.60 from Mathi Chettiar for Rs. 300/-. The vendor kept

two cents on the North. Since, there was no approach for the southern two cents even at the time of sale, the plaintiff purchased the southern two

cents with passage on the nor them property. The sale deed itself makes it clear that the plaintiff has got right to take cart and cattle and use the

western property on the north as passage. Hence, the plaintiff had purchased right of passage as described in the sale deed, Mathi Chettiar sold

northern two cents to his sons Alagarsamy and Gurusamy under sale deed dated 4.9.63 for a normal price. They were aware of their father''s right

and also the right of the plaintiff. Hence, they have purchased the extent with the liability. The plaintiff again purchased one cent of share from

Alagarsamy under sale deed dated 20.4.66. The said portion is just north of plaintiff 2 cents already purchased. Alagarsamy had also referred to

the said Vandipathai in the sale deed. The plaintiff has been using the cart track and he has got right. Gurusamy son of Mathi Chettiar who was

entitled to northern one cent had put up a small thatched shed only in 1966 leaving the passage. He has not put up any construction or obstruction

in the passage. The plaintiff has been in possession and enjoyment of the passage by taking his cart and cattle. There was no obstruction till

Gurusamy sold the same to the defendant on 31.3.80. There was no construction in the one cent belonging to Gurusamy. Only a thatched shed

without any walls was there and it was also in a dilapidated condition. The defendant has purchased only a vacant site and there was no

construction. The defendant now unlawfully without any right put up a tiled shed obstructing the passage. The defendant has no right to place any

obstruction in the passage. The plaintiff issued notice to defendant and the defendant issued reply containing false particulars. Gurusamy the

defendant''s vendor never put up thatched construction in the entire one cent as alleged in the notice. He has put up only small shed without

obstructing the plaintiffs right. Therefore, the suit is filed for declaration and mandatory injunction.

The case of the defendant is as follows:-

Mathi Chettiar sold two cents in favour of his two sons Alagarsamy and Gurusamy. They divided the properties and in die partition, the southern

one cent was allotted to Alagarsamy and the northern one cent was allotted to the share of Gurusamy. The said Gurusamy put Up a thatched

house in the said once cent even prior to 1971 and he has been enjoying the same since then in his own right. The plaintiff was never enjoying any

right in the said two cents, purchased by Alagarsamy and Gurusamy. Gurusamy has been enjoying the said one cent with thatched construction put

up therein till he sold the same to defendant on 313.80. Even assuming that any right of way was given to the plaintiff in the sale deed, the plaintiff

has not enjoyed such a right all these years and defendant and his predecessors in title have been enjoying the entire one cent by their right of

purchase. It is false to allege that the defendant has put up shed only recently. The defendant has only repaired the property which was previously

existing as a thatched house. The old thatched roofing has now been converted into tiled roofing by the defendant. The plaintiff who is the

neighbours owner on the east and south of the suit property, has been fully acquiescing in the existence of the structure and never objected to the

same either at the time of construction or subsequently, till he issued notice. Hence, the plaintiff is estopped from seeking removal of the same by

mandatory injunction. It is not true to allege that the sale deed in favour of the plaintiff is binding on the defendant. The plaintiff having purchased

one cent allotted to the share of Algarsamy, cannot deny the right of the defendant to enjoy the northern one cent. Even prior to Gurusamy putting

up thatched house, there was already a mud construction existing in the ground floor.

On the above pleadings, the trial court has framed five issues. On a consideration of oral and documentary evidence, the trial Court has granted

decree in favour of the plaintiff. Against the said judgment and decree, the defendant filed appeal in A.S. No. 68/84. The learned HI Additional

Sub-Judge, Madurai by judgment dated 28.2.85 allowed the appeal and consequently, the suit was dismissed with costs. The plaintiff who lost his

case in the appellate Court has come forward with this Second Appeal.

The following substantial questions of law were formulated while admitting this Second Appeal:-

Whether the easementary rights mentioned in Exs.A-1 and A-2 were extinguished as contended by the defendant?

Whether in the absence of any specific issue as regards the adverse possession pleaded by the defendant, is the lower appellate Court right in

coming to the conclusion that the defendant has prescribed title by adverse possession to the disputed property?

It is not in dispute that Mathi Chettiar that Mathi Chettiar was entitled to four cents on the east out of 9 cents in R.S.17/5. It is also not in dispute

that the plaintiff purchased two cents from Mathi Chettiar under sale deed Ex.A-1 dated 21.11.60. It is seen that Mathi Chettiar sold northern two

cents to his two sons namely., Alagarsamy and Gurusamy under Ex.B-1 dated 4.9.63 Subsequently, the plaintiff purchased one cent from

Alagarsamy under sale deed Ex.A-2 dated 20.4.66. It is admitted that the defendant purchased remaining one cent from Gurusamy another

brother of Algarsamy, under sale deed dated 31.3.80. The pathway situate in the extent of northern one cent measuring 10 feet east-west on the

western side and 25 feet north-south is the suit property,

It is alleged in the plaint that the plaintiff purchased right of way on the northern two cents under sale deed. Ex.A-1. In Ex.A-1, sale deed, it is

specifically recited that Mathi Chettiar sold two cents out of four cents and that right of passage on the west of remaining two cents was also given

to vendee. It is recited thus:-

The above sale deed was executed on 21.11.60. It cannot be disputed by the defendant that the right of passage was given to plaintiff under

Ex.A-1 on the western side of northern two cents belonging to Mathi Chettiar. The defendant claims right to northern one cent only through Mathi

Chettiar. The right and title of Mathi Chettiar alone will pass to defendant and as such, the recital in the sale deed as regards the pathway on the

western side in the remaining northern one cent cannot be disputed by the defendant.

It is seen from Ex.B-1 dated 4.9.63, the sale deed executed by Mathi Chettiar in favour of his two sons, it is recited that vacant site on the north

of plaintiffs property an extent of two cents was sold. The existence of the pathway as recited in Ex.A-1 is not referred to in Ex.B-1. But, in Ex.A-

2, the sale deed executed by Alagarsamy in favour of the plaintiff, it is recited that the property sold thereunder is situate to the west of house and

site of plaintiff and to the east of the cart track and south of Gurusamy''s. The above recitals in the document will clearly show that Gurusamy was

in possession of one cent on the north of the property sold by Alagarsamy and in the extent of one cent sold by Alagarsamy, there was a cart

track. That is why, it is recited as . The recital in Exs.A-1 and A-2 will clearly show that there should have been a cart track on the, west of the

property sold by Alagarsamy to the plaintiff. It is (sic) significant to note that in Ex.B-1 which was executed throe years earlier to Ex. A-2, there is

no reference to the cart track. But, if really there is no cart track on the west, there was no need for Alagarsamy to describe in Ex.A-2 that the

property is situate to the east of the cart track. It is, thus, seen that Alagarsamy sold one cent excluding the cart track on the west.

The defendant who claims to have purchased the property from Gurusamy has not produced the sale deed. It is recited in Ex.A-2 us . It is, thus,

clear that Gurusamy would have put up thatched hut even prior to the date of Ex.A-2. It is clearly described in Ex.A-2 that there was cart track on

the west of northern two cents. It is alleged in the written statement that Gurusamy has been enjoying his one cent with thatched construction till he

sold the same in favour of the defendant. It is, further, alleged mat the defendant after purchased only repaired the property which was already in

existence as a thatched house. But, it is clear from Ex.A-2 that the alleged thatched house did not occupy the entire northern one cent As it is

clearly recited in Ex.A-2 that the pathway is situate to the east of thatched hut and site of Gurusamy, it can be reasonably inferred that even on the

date of sale deed executed by Gurusamy in favour of defendant, the entire northern one cent was not fully constructed. On the other hand, it would

only show that there was a small matched house on the east of the cart track. That is why, it is recited in Ex.A-2 that the property sold by

Alagarsamy is situate to the east of cart track. The recitals found in Ex.A-2 have to be considered along with the recitals in Ex.A-1, wherein it is

clearly stated that in the western portion of northern two cents, the plaintiff has got right to use the same as cart track. In the above circumstances,

the defendant ought to have produced the sale deed executed by Gurusamy in his favour.

It was contended by the plaintiff even in the trial Court that if the sale deed in the name of the defendant was produced, it would affect the case

of the defendant and that therefore, it was not produced. I fail to understand as to how the defendant failed to produce the sale deed executed by

Gurusamy in his favour. As the defendant has suppressed the material document, it is net possible to accept the case of the defendant that

Gurusamy put up construction inclusive of the portion set apart for the cart track.

The appellate Court places much reliance upon the report of the Commissioner and plan. In Ex.C-2 the plan, the property is shown as ABCD.

On the east of the property, a drainage which is three feet wide east west is shown as common place. It measures 16 feet east-west and 27 feet

north-south. There is a tea stall in the north of the property and titled roof and kitchen On the south. The Commissioner has observed that the titled

roof and all the suit property appears to be old and that repair work had been done by the owner to modify the old condition of the suit property.

In paragraph 5 of Ex.C-1"", it is stated that in the Western side of the suit property, there is an old matched roof facing western side and that it is

attached to the suit property. But, the Commissioner has observed that in the suit property, there is no pathway. Relying upon the above facts, the

appellate Court has held that there is common lane on the east of the suit property and that the Commissioner has observed that there is no cart

track in the suit property and that the plaintiff did not file any Objection to the report of the Commissioner. The suit was filed in the year 1982, i.e.,

two years after the defendant purchased the property. The Commissioner inspected the property on 24.7.80. The opinion of the Commissioner

that the wall and roof appears to be old in the suit property will not assist the case of the defendant, since the defendant failed to produce the sale

deed. As it is clearly recited in Ex.A-2 cited in the year 1966, that there was cart track on the west of northern one cent the fact that the

Commissioner has found tea stall and kitchen in the suit property on the date of his inspection will not prove the case of the defendant that

Gurasamy was in enjoyment of the entire northern one cent by putting up house. In the reply notice, Ex.A-4, the defendant has stated that he has

only repaired the property which had been previously existing as a thatched house. Therefore, the sale deed executed by Gurusamy in favour of the

defendant will assume much importance, since it would disclose the material facts whether the defendant purchased the thatched house and vacant

site from Gurusamy. The Commissioner has observed that near the eastern side of the suit property, there is a drainage and that it is found in the

common place. The appellate Court has observed that there is common lane on the east of the suit property and that through the above common

lane, the plaintiff could reach his property. It is no doubt true that the Commissioner has shown the above property in his plan. But the

Commissioner has observed that it is only a common drainage. Therefore, it cannot be common lane as observed by the appellate Court. I fail to

understand as to how cart and cattle could be taken through a drainage. The appellate Court has observed that since there is alternative way on the

east, the plaintiff is not entitled to claim easement by necessity. The appellate Court has further held that though there is recital in Ex.A-1 that the

plaintiff is entitled to right of pathway, it did not come into force, as it is not mentioned in Ex.B-1. The plaintiff is not party to Ex.B-1, Ex.B-1 came

to be executed after the date Ex.A-1. Therefore, the absence of any reference to pathway in Ex.B-1 will not affect the right of plaintiff who

acquired right of passage on the western side of northern two cents under Ex.A-1. Since the defendant has not filed his sale deed, it is not possible

to come to a conclusion that the entire property shown as A B C D and tea stall was in existence on the date of the sale in favour of the defendant.

It is contended by the defendant that Gurusamy was in enjoyment of the entire one cent by putting up thatched house inclusive of the portion

claimed as pathway by the plaintiff and that the defendant repaired the said thatched house subsequently and that the plaintiff failed to object at the

time when Gurusamy put up construction and that therefore, the plaintiff is estopped from questioning the right of defendant in the suit property. As

already stated, the question whether the defendant purchased the property now shown in the Commissioner plan from Gurusamy could be

established only from the documentary evidence. No amount of oral evidence can be substituted for documentary evidence especially when it is

available. In the above circumstances, the plea of estoppel set up by the defendant cannot be accepted. There is no plea in the written statement

that there is common lane on the east of thatched construction of Gurusamy. In the absence of such plea, the appellate Court is not justified in

coming to the conclusion the plaintiff has got alternative pathway to reach house.

Learned counsel for the respondent contended that the plaintiff never exercised right of easement and that he allowed the defendant to repair

the building and that the conduct of the plaintiff will amount to abandonment of easementary right. In support of the same, he also relied upon a

decision reported in V.R. Varadarajulu Chettiar Vs. Muthukannu Ammal and Another, . The above decision will not assist the case of the

defendant in any way, since the defendant failed to produce the sale deed in his favour (sic). Further it is not clear whether the present building was

in existence even on the date when the defendant purchased the property. It is also not clear whether the defendant had put up pucca building after

purchase. In the absence of any such materials, it cannot be contended that the conduct of the plaintiff in allowing the defendant to effect repairs by

incurring expenses would amount to estoppel. The appellate Court has held that even though right of pathway is deferred to in Ex.A-1, it did not

come into force and that F.W.I, has admitted thus:-

It is not proper for the appellate Court to give a finding on one or two admissions made by the plaintiff in the evidence. The entire evidence, both

oral and documentary, should be considered in proper perspective for giving a finding on the question whether the plaintiff is entitled to right of

pathway. In this case, the right of way has been expressly conferred on the plaintiff under Ex.A-1 and Ex.A-2. In Maneklal v. Maneklal (AIR

1932 Bombay page 574) it is held that where a right of way granted under an award was a passage for ingress and egress with all its connected

rights, it is a grant of a general right of way. In Annapurna v. Santosh Kumar (AIR 1937 Calcutta page 661), it is held thus:-

Where an owner of land sells a portion of it and the deed of Conveyance and the plan annexed to it do not describe certain boundary of the

portion sold as ijmali land of the vendor nor even a common passage of the vendor and his co-sharers but describes it as common passage

generally, a grant of the right of passage may be presumed on the principle akin to estoppel and the grantor cannot derogate from this position and

say that it was a passage meant for the vendor alone and not for the vendee.

The fact that the right of way is not mentioned in Ex.B-1, would not affect the case of the plaintiff, since the right of way was already conferred

on the plaintiff under Ex.A-1 and A-2. In Mohammad Asaraf v. Kulasekaraperumal Pillai (87 L.W.874), it is held thus:-

Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all; the interest which the

transferor is then capable: of passing in the property and in the legal incidents thereof - S. 8 of the T.P. Act.

In Govindarajulu Chettiar v. Srinivasaly Naidu (85 L.W.296), it is held that the question whether a grant can be implied or not would only arise in a

case where there is no express grant. In this case, the original owner of the property has expressly granted right of pathway in its remaining

properties. The plaintiff is entitled to exercise the said right when it becomes necessary. The plaintiff has claimed decree for declaration that he has

got right to take cattle and use the suit property. It is, thus, seen that the plaintiff is entitled to claim relief on the basis of express grant.

Explanation I to Section 38 of Easements Act clearly states that mere non-user of an easement is not implied release within the meaning of this

section. Section 47 of the Indian Easements Act states that a (sic) continuous easement is extinguished when it totally ceased to be enjoyed as such

for an unbroken period of twenty years. The plaintiff purchased the property under Ex.A-1 dated 21.11.60 and subsequently, he purchased one

cent under sale deed Ex.A-2 on 20.4.66. The suit is fried in the year 1982. As there is reference to pathway in Ex.A-2 which was executed in the

year 1966, it can be contended that the above right ceases to be enjoyed for unbroken period of 20 years. In K. Kanakamma v. T. Rango Rao

(AIR 1957 Andhra Pradesh 419), it is held that easement right would be extinguished u/s 47 of the Easements Act wily if it has not been enjoyed

as such for an unbroken period of twenty years. In this case, the defendant purchased the property only two years prior to the date of this suit. It is

contended by the plaintiff that till then, the right was not obstructed by his vendor. I see no reason to discard the above contention of the plaintiff.

As already stated, the drainage shown by the Commissioner cannot be used as a pathway. For the above reasons, I hold that the contentions

raised by the respondent have got to be rejected. The appellate Court without considering the vital aspect of the case, especially the documentary

evidence Exs.A-1 and A-2 has come to the erroneous conclusion in holding that there is no cart track in the suit property. Therefore, on substantial

question of law No. 1, I hold that the easementary right is not extinguished. Substantial question of law No. 2 does not arise for any consideration,

since the defendant purchased the property only in the year 1980. In the result, the Second Appeal is allowed. The judgment and decree of the

appellate Court are set aside. The judgment and decree of the trial Court are restored. The parties are directed to bear their costs throughout.