Murugesa Moopanar vs Sivagnana Mudaliar

Subramani, J.—Defendants in O.S. No. 271 of 1979, on the file of District Munsif''s Court, Tiruvaiyaru, are the appellants before this

Court.

Suit filed by plaintiff, which was originally for injunction was converted into a suit for possession by adding an alternative relief.

The material averments in the plaint are as follows : - The plaint schedule property was acquired by plaintiff which is having an area of 23 cents

included in Survey Number 440/13 (13 cents) and Survey Number 440/14 (10 cents). The boundaries are also provided in the Schedule, namely,

south of Cauvery River bund, and on all the other three sides, covered by the property belonging to Pushpavalli Animal. A rough plan is also filed

along with the plaint to show the location. It is said that the plaint property is a cinema theatre, and as regards the remaining extent, plaintiff is

cultivating the same. In Paragraph 7 of the plaint, it is said that close to the plaintiffs property, from the northern side, there is a Cauvery River

bund. It is said that through Papanasam-Kabisthalam road, first defendant has access to his property. It is said that on 1-3-1979, defendants who

have got property on the southern side of the plaintiff, attempted to interfere with the plaintiffs possession and enjoyment. When the plaintiff wanted

to fence his property, defendants prevented him completing the fencing on the claim that they have got a right of way through the plaintiffs property.

It is the case of the plaintiff that the defendants have got other access to their property and, therefore, their claim is unfounded.

The suit was initially filed for injunction, subsequently, by adding paragraph 10-A to the plaint, the plaint was amended, stating that even though

an application was filed for the relief of injunction, by mistake of counsel, it was dismissed as not pressed. Taking advantage of that Order,

defendants trespassed into the property and put up a way through plaintiffs property and have also fenced on all the four sides. Thus, a portion of

the plaintiffs property has been cut and is now in the enjoyment of the defendant. The suit was, therefore, amended as one for recovery of that

portion of the plaintiffs property now converted as a pathway.

In the original written statement, the defendant contended that the rough plan filed by plaintiff is not according to the lie of the property and they

have filed a plan. As per the said plan, it is contended that they have got a right of way and that portion is not forming part of the plaint property. It

is said that for the last 40 years, defendants and their predecessors are making use of that portion of the property as a way. It is said that that road

had got a width of 12 feet and they have no other way.

In the additional written statement, they reiterated their contention. The allegation that the defendants trespassed into the plaintiffs property was

denied. They said that they have been in possession of the pathway for more than the statutory period.

On the above pleadings, trial Court took evidence. Ex. A-1 to A-4 were marked on the side of the plaintiff. Ex. B-1 and B- 2 were marked on

the side of the defendants. Commissioner''s Report and Plan were marked as Ex. C-1 and C-2. Plaintiff was examined as P.W. 1, and second

defendant was examined as D.W. 1. Three other witnesses were also examined on the side of the defendants.

Elaborately discussing the evidence, the trial Court came to the conclusion that the plaintiff is the absolute owner of the plaint property and the

defendants have no right over any portion of the same. The trial Court said that Ex. A-1 and A-2 are title deeds of the plaintiff by which he came

into possession of the entire 23 cents. The trial Court also came to the conclusion that there are other pathways even as per evidence adduced by

the defendants. The trial Court also held that the defendants have no right of way and the claim put forward by them on the basis of easement of

necessity cannot be accepted. The trial Court also held that the claim of easement by prescription or customary easement cannot be accepted. The

trial Court also held that the defendant has trespassed into the plaintiffs property, and in view of the demarcation of a pathway within the plaintiffs

property, the plaintiff is entitled to recover the same from the defendants. Cost was also allowed. The Commissioner''s Plan Ex. C-2 was also

appended to the decree.

The aggrieved defendants filed A.S. No. 24 of 1985, on the file of the Subordinate Judge''s court, Thanjavur. The lower Appellate Court also

confirmed all the findings of the trial Court and dismissed the Appeal with costs. It is against the concurrent judgments of both the Courts below,

defendants have preferred this Second Appeal.

At the time of admission of the Second Appeal, the following substantial questions of law were formulated for consideration :-

1) Whether the lower appellate Court is correct in law in negativing the claim of easement of necessity only because there is another alternative

way which is circuitous, and

2) Whether the lower appellate Court erred in overcoming the plaintiffs own admission regarding the existence of the pathway and the user by the

defendants?

Even though in the written statement, various contentions were raised by the appellants including ownership of the property, easement by

prescription, customary easement etc., none of these contentions were pursued before this Court. The only contention urged by learned Senior

Counsel for the appellants was that the defendants have got a right of easement by necessity and, therefore, the decrees granted by the Courts

below have to be set aside or modified to the extent declaring the easement of the defendants.

Learned Senior counsel for the appellants also contended that the defendants claim easement of necessity and not any other kind of easement.

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 servant 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.

The disposition which terminates the common ownership and gives rise to an easement by implication of law, may be of either tenement, or may be

a simultaneous disposition of both tenements ""Easement"" is also defined as a right which the owner or occupier of certain land possesses, an such,

for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to do thing being done, in or upon, or in

respect of certain other land not his own. It is a curtailment on the enjoyment of the absolute owner and, therefore, unless it is priced by the

appellants that they are entitled to curtail the rights of the plaintiff in the enjoyment of his land, they cannot claim a right of easement.

In both the written statement filed by defendants, there is no pleading of easement of necessity. What they pleaded was, that for the last 30 or

40 years, they and their predecessors have been enjoying the right of way, and they are also making use of the same. We may note that the Courts

below have concurrently held that the appellants or their predecessors have no prescriptive right of easement. That means, the claim put forward

by them, namely, that they have been in enjoyment of the pathway in question for the last 30 or 40 years, is not true. Of course, in paragraph 3 of

the original written statement, they have stated that they have no other way to enter their property. That by itself is not sufficient to acquire the

easement of necessity. The appellants must have alleged and proved that their property as well as the plaintiff''s property belonged to a common

owner, and by virtue of division, disposition or transfer, the common ownership has been divided into various tenements, and consequently, they

are entitled to a right of easement. Absolutely there is no pleading in that regard. Even when the second defendant was examined as D.W. 1, no

such case was put forward. Of course, learned Counsel for the appellants submitted on the basis of oral evidence that the common ancestor was

the same. I do not think that that contention could be accepted. In fact, the Courts below have also come to the conclusion that such a contention

is without any basis.

Assuming for argument''s sake that such a contention could be put forward, even then, by virtue of Section 41 of the Easements Act, the same

is lost. Section 41 says : An easement of necessity is extinguished when the necessity comes to an end.

The necessity contemplated u/s 13 of Easements Act is the absolute necessity, and not convenient necessity. At page 240, on ""Easements and

Licenses"" by BLB. Katiyar - 11th Edition (1993), the learned Author, on the basis of several decisions of this Court and also various other High

Courts, has said thus :-

.....An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement

of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and

not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of

necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours.

An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity.

When there are other ways of ingress and exit, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient.

The right of way as easement of necessity implies that there is no other means of access, however, inconvenient. When the dominant tenement

cannot be enjoyed without imposing burden on the servient tenement, then the question of easement of necessity arises. If an alternative way exists

no question of necessity arises.

Both the Courts below have held that the appellant has got other right of way. Evidence of D.W. 4 was taken into consideration by both the

Courts below. He is a neighbour living adjacent to the defendants property. He has spoken about the right of way and how far the members of the

public are making use of that way. From his evidence, it is clear that the necessity that is sought for by the appellants is not an absolute necessity,

but only a shortcut to enter into their property. Therefore, that cannot be considered as an easement of necessity, in the sense, an absolute

necessity as contemplated under law.

In the Plan filed by the Commissioner, we find that a public pathway is provided for entering into the land of the defendants and Ors. The said

plan has been directed to be appended to the decree. From the plan, it is clear that from the western end, there is an open passage through which

the defendants can enter into their property. D.W. 4 has also spoken about the other rights of way.

Learned Senior Counsel for the appellant submitted that a circuitous route or a way which is inconvenient for use. is not an alternative pathway

and, therefore, easement of necessity could be claimed. The only pleading in paragraph 3 of the written statement is that except the pathway in

question, there is no other access to reach the defendants'' lands, and not that the other way suggested by the plaintiff cannot be made use of. Even

D.W. 1 did not speak in that line.

Learned Senior Counsel for the appellant also submitted that when the Commissioner visited the property, plaintiff indicated other rights of

way, but the same was not reported. This, according to the learned Senior Counsel, will show that the allegation put forward by the plaintiff is

without merit. Merely because the Commissioner did not mention about the other rights of way even though the plaintiff was prepared to show the

same to the Commissioner, that does not follow that the case put forward by the appellant is true. The Commissioner also did not say that the

newly opened passage which necessitated the amendment of the plaint is the only right of way.

Even assuming that no other right of way was shown by the plaintiff, unless the appellant satisfies the ingredients of Section 13 of the

Easements Act, he cannot succeed in getting the relief in the suit.

Learned Senior Counsel for the appellant also submitted that in paragraph 7 of the plaint, there is unequivocal admission on the part of the

plaintiff that the defendants have got a right of way, and this admission has been given a go by or not acted upon by the Courts below while passing

a decree. Both the Courts below have considered paragraph 7 of the plaint. They have interpreted that what the plaintiff said was that from the

Cauvery bund, the defendants have got a right of way. The plaintiff does not say that through his property, the defendants are enjoying a way.

When the defendants rely on a so called admission, that statement will have to be read as a whole, and a reading of part of it will amount to

misinterpretation of what the plaintiff has stated. I also fully agree with the findings of the Courts below that there is no admission on the part of the

plaintiff that the defendants have got a right of way through his property. What he said was, that from the western side of his property, defendants

can enter into their property. This has nothing to do with the plaintiffs property, nor does he admit that through his property a right of way is

provided to the defendants.

After the suit was filed, evidence was let in to show that the defendant forcibly entered into the plaintiffs property and converted a portion of

the same into a pathway. This high handedness on the part of the defendants can never be encouraged. Both the courts below have also rightly

come to the conclusion on correct appreciation of the evidence that the defendants have no right, and the plaintiff is entitled to a decree. It was also

contended that the suit is only for an injunction and, therefore, status quo as on the date of suit has to be maintained. We find that the suit was

amended as one for recovery of possession and both the Courts below have granted a decree in favour of the plaintiff, to recover possession, even

though the claim of the defendant is only easement. I do not find any merit in this Second Appeal. Both the substantial questions of law are found

against the appellant.

In the result, the Second Appeal is dismissed with costs.