Mangayarkarasi vs Veerappan Ambalam and Others

K. Sampath, J.—The plaintiff who lost before both the courts below is the appellant. She filed suit O.S.No.406 of 1980 before the District

Munsif''s Court, Pattukottai, for permanent injunction on the following averments:

The suit property of an extent of 12 cents in S.No.86/13 in Thuravikkadu Village with 13 coconut trees and 1 jack fruit tree, which was fenced on

three sides, originally belonged to one Saroja from whom she bought it on 20.7.1997 under Ex.A-1. She was in possession eversince. The 15

cents immediately north of the suit property belonged to her late husband and she was in possession of that property also. The total extent of the

suit survey number was 59 cents. The balance extent of 32 cents was in the possession of the first respondent. When she attempted to erect

granite and barbed wire fencing, respondents 1 to 3 objected and wanted the suit properties to be sold to them. Since the appellant refused, the

respondents got enraged and damaged the boundary stones in the suit properties. The first respondent was the father of respondents 2 and 3 and

the fourth respondent was a cohort of the respondents. The respondents had no right or possession. The suit was therefore filed.

The first respondent filed a written statement and the same was adopted by the other respondents. In the written statement it is contended as

follows : The parties to the suit did not measure the properties as per the sale deed in their favour, but they fixed the boundaries. One Raman

Ambalam and Veerasamy Ambalam were in possession of the suit survey number. They sold the northern 15 cents. The western portion of the suit

property was being used as cart track. It was necessary for access to Aranthangi-Pattukottai Road. After the death of Raman Ambalam, his son

Veerasamy was in occupation of the suit survey number and he was using the cart track. Under Ex.B-2, dated 11.5.1968 Veerasamy sold the

southern 33 1/3 cents to the first respondent. The first respondent put up a construction and was in occupation. The middle portion was sold by

Veerasamy to Saroja under Ex.A-3, dated 11.7.1968. Even after the purchase by the appellant there were no bunds or fences demarcating the

properties. There was no passage fixed on the southern side. The first respondent had no access to going to Aranthangi-Pattukottai Main Road. It

was a case of easement of necessity. The appellant wanted the first respondent to sell the property purchased by him. As he was not willing, the

present suit came to be filed to force the first respondent to come to terms. The appellant was not entitled to any relief.

The learned District Munsif, Pattukottai, by his judgment and decree dated 28.9.1983 dismissed the suit holding that the respondents needed

the pathway as an easement of necessity and that the appellant was not entitled to the relief prayed for by her.

The appellant filed appeal A.S.No.51 of 1983 before the Subordinate Judge''s Court, Pattukottai. She also filed I.A.No.23 of 1984 for

reception of additional evidence. She attempted to show that the first respondent owned property in S.No.87/2 to the east of the suit property and

therefore, there was access to the road through that property.

A counter was filed by the first respondent to the application for reception of additional evidence stating that the first respondent was living away

from his family, that the eastern property belonged to his sister and that it was not possible to go to the main road through that property. The

application for reception of additional evidence was allowed and the documents sought to be produced by the appellant were received as

additional documents and they were marked as Exs.A-4 to A-6.

The lower appellate court on the basis of the Commissioner''s Report and plan and D.W.2''s evidence, found that to the west of Thangavelu''s

property there was 9 feet wide pathway east of D.E. line shown in the Commissioner''s plan and that the said pathway must have been in use by

the parties and that the respondents could not have used the eastern property as it belonged to third party. Consequently, the appeal was allowed

in part and the learned Subordinate Judge granted a decree in favour of the appellant as prayed for less 9 feet passage. Aggrieved, the present

Second Appeal has been filed.

All the time of admission the following substantial question of law was raised for consideration in the Second Appeal:

Whether notwithstanding the failure to plead a right of easement of necessity, the same can arise by inference?

Mr. V.K. Vijayaraghavan for Mr. S. Byravan, learned Counsel for the appellant, took me through the plaint, the documents, the report and the

plan of the Commissioner and the objections to the Commissioner''s report and submitted that there was an alternative pathway available to the

respondents on the east of the property and when alternative pathway or access was available, the decree by the lower appellate court on the

ground that it was an easement of necessity, was not sustainable. The learned Counsel also submitted that the Commissioner found an alternative

access and not only that, the Commissioner found no trace of cart track in the suit plan.

The learned Counsel relied on the following decisions in support of his contentions:

(1) (Sri Rajah Vyricherla) Narayana Gajapatiraju Bahadur Garu Vs. Sree Rani Janaki Rathayyammaji Garu, ; (2) Mariyayi Ammal and Ors. v.

Arunachala Pandaram AIR 1956 Mad. 584; (3) Kamalammal v. Chakravarthy and Ors. (1964) 2 M.L.J. 241 : 77 L. W. 352; (4) Louis alias

R.P. Thambi Raja and Anr. v. R. Irudayaswamy Ammani (1991)1 L.W. 557; (5) Muthu Injodikkaran Anthony v. Varied and Ors. AIR 1989

(Ken) 53 ; (6) Margaret Ammal v. Susai Mari (1996)2 L.W. 27; (7) Fathima and Anr. v. K.S. Kadherkani (1995)2 L.W. 705; (8) Dilbagrai

Punjabi Vs. Sharad Chandra, and also (9) Sarkar''s Commentaries on The Evidence Act, Volume I, Edition 14, page 331.

Per contra, Mr. R. Vijayasankar for Mr. S. Thiruvengadasamy, learned Counsel for the respondents, contended that the common owner was

examined as D.W.2, and he had definitely stated that the portion claimed as pathway was intended and was set apart as pathway. The

Commissioner''s report clearly showed that the access through the eastern property was not really there, and in the absence of an alternative mode,

the respondents were entitled to the pathway as an easement of necessity. The learned Counsel also relied on the following decisions:

(1) Palaniswami Naicker v. Chinnaswami Naicker 81 L.W. 95. (2) Mohammed Asaraf and Ors. v. Kulasekaraperumal Pillai 87 L. W. 874. (3) L.

Govindarajulu Chettiar Vs. V.N. Srinivasalu Naidu, .

In (Sri Rajah Vyricherla) Narayana Gajapatiraju Bahadur Garu Vs. Sree Rani Janaki Rathayyammaji Garu, dealing with Section 13(2) of the

Easements Act, a Bench of this Court held as follows:

An easement of necessity being on easement without which a property cannot be used at all and not being one merely necessary to the reasonable

enjoyment of the property, a plaintiff cannot claim on the ground of necessity a right of way over the land of another where, another mode of

access to his property exists.

In Mariyayi Ammal and Ors. v. Arunachala Pandaram AIR 1956 Mad. 584, it was held that to claim right of way as an easement of necessity,

it must be proved that there was no other access to his property by the defendant. Convenience was not the test, but test was of absolute

necessity.

In Kamalammal v. Chakravarthy and Ors. (1964)2 M.L.J. 241 : 77 L. W. 352, it was held that

a house owner in order to repair his wall on his neighbour''s side of the premises had the right to go to the other side of the wall on the land of his

neighbour, the right being in the nature of a necessary easement but such and easement did not extend to going over the neighbour''s roof or terrace

for that purpose. Further the existence of other methods of attending to the repairs from within the property of the plaintiff himself is fatal to the

claim to an easement of necessity.

In R. Louis alias R.P. Thambi Raja and Anr. v. R. Irudayamary Ammani (1991)1 L.W. 557, M. Srinivasan, J. as he then was, held that

Section 13 of the Easements Act would come into play only in cases of necessity. In that case, the original common owner was using the open

space as passage to reach the main road. It was held by the learned Judge that after the severance of the two houses, the respective owners would

not have any easementary right.

In P.J. Johnson and Sons. Vs. Astrofiel Armadorn S.A. of Panama, Panama City and Others, it was held that existence of alternative pathway

however inconvenient was sufficient to reject the claim of easement of necessity.

In Margaret Ammal v. Susai Mari (1996) 2 L. W. 27, S.S. Subramani, J. after referring to a number of decisions, held that in case there was

possibility of the party having access provided in his own property for draining water by making necessary alterations he could not claim any

easement of necessity.

The other two decisions viz., Palanisamy Naicker (1995)2 L. W. 705 and Dilbagrai Punjabi Vs. Sharad Chandra, are for the proposition that

when there is perverse finding by the Subordinate Courts, the High Court is entitled to interfere u/s 100 of the Code of Civil Procedure.

In Palaniswami Naicker v. Chinnaswami Naicker 91 L. W. 95, relied on by the learned Counsel for the respondents, Ramaprasada Rao, J. as

he then was relying on Section 8 of the Transfer of Property Act held that easement passed with the property and the omission of the suit pathway

in the deed and of the existence of the accredited easement of way in question over the southern portion are not material circumstances so as to

delimit in any way the vested right in the plaintiff.

In Mohammed Asaraf and Ors. v. Kulasekara Perumal Pillai 87 L.W. 874, Gokulakrishna, J. as he then was, held that,

unless a different intention was expressed or necessarily implied, a transfer of property passed forthwith to the transferee all the interest which the

transfer or was them capable of passing in the property and in the legal incidents thereof.

In L. Govindarajulu Chettiar Vs. V.N. Srinivasalu Naidu, , again Gokulakrishnan, J. as he then was, held that absence of an express grant of

an easement did not negative an implied grant of such easement.

Bearing the principles laid down by the several decisions referred to above, the whole question in the present case boils down to whether what

was claimed by the respondents was an easement of necessity. The ratio of the decisions is to the effect that there must be absolute necessity.

Convenience was not the test. No doubt, there need not be an expressed grant. The non-mentioning in the sale deed did not matter as long as a

case for implied grant was made out. The Commissioner''s Report and the plan show the lie of the land. The Commissioner has specifically

mentioned about the absence of cart track in the suit property. He has also noticed that the respondents had access to the road along the eastern

property. In the written statement the first respondent stated that the eastern property belonged to his sister. In his report, the Commissioner has

stated that the first respondent represented that the eastern property belonged to his brother. It may have to be stressed once again that there is no

trace of cart track in the suit property. The suit was filed on 30.5.1980. The Commissioner visited the property on 23 7.1980 and he reported

about the lie of the land and other aspects of the suit property. The Commissioner has noticed that an access has been provided across the bothi

channel on the east of the property for access to the eastern property by means of palmyrah trees. If as claimed by the respondents they had not

been using that access and if they had nothing to do with the eastern property, the existence of this provision for crossing the channel for going to

the eastern property had not been explained. The Commissioner has also found that the parties could go to the main road from the eastern

property. As already mentioned the authorities are clear on the point that if there was alternative pathway in existence, however inconvenient it

might be, still there could not be a claim as an easement of necessity.

The above discussion obliges me to interfere in the Second Appeal. The courts below had not considered the important aspect mentioned

above, which had a direct bearing on the disputed issue and the error made by the courts below has given rise to a substantial question of law

warranting interference under See. 100 of the Code of Civil Procedure. The substantial question raised is therefore answered in favour of the

appellant. The Second Appeal succeeds. The judgments and decrees of the courts below are set aside and the suit will stand decreed as prayed

for in entirety. There will, however, be no order as to costs.