Periya Gounder (died), Palani Gounder (died), P. Raju, P. Vasu and Sellammal vs Chinna Gounder, Nallathambi, Muthu Gounder (died), Kandasamy, Palaniammal and Sundaramurthy

M. Karpagavinayagam, J.—Chinna Gounder and three others, the respondents 1 to 4 herein filed a suit for declaration that they are entitled

to use the cart track and for permanent injunction restraining the appellants 1 and 2/defendants from causing any obstruction to the use of the said

cart track. The said suit was dismissed by the trial Court. Aggrieved by the same, Periya Gounder and another, the defendants filed an appeal

before the lower appellate Court. After hearing the counsel for the parties, the lower appellate Court allowed the appeal and decreed the suit in

favour of the plaintiffs. Hence, the second appeal by the defendants.

The case of the plaintiffs is as follows:

The plaintiffs own landed properties in Survey Nos.295 and 297 and Karumapuram village. The defendants own lands in S.No.296. S.No.295

belonging to the plaintiffs is situate at the western side. Survey No.296 belonging to the defendants is situate at the eastern side. The panchayat

road leading from Karumapuram village is situated on the south of Survey No.295, the land of the plaintiffs and Survey No.296, the lands of the

defendants. Both the plaintiffs and defendants have been using the suit cart track, which is situate in between S.Nos.295 and 296 for reaching the

panchayat road. The said cart track has been in existence for the last more than 60 years. Thus, the plaintiffs and the defendants have been using

the said cart track which runs through S.Nos.295 and 296. When the defendants prevented the plaintiffs from using the said cart track, the

plaintiffs filed the suit. During the pendency of the suit, a panchayat was held. In the panchayat, it was decided that the trees standing on either side

of the cart track have to be cut and the existing cart track should be properly repaired. Accordingly, the plaintiffs cut the trees and repaired the cart

track. However, the defendants did not allow to use the said cart track. Hence, the suit for declaration that the plaintiffs are entitled to use the cart

track which runs through both the lands and for permanent injunction restraining the defendants from preventing the plaintiffs from using the same.

The case of the defendants is as follows:

The suit cart track is in existence and is being used by the defendants alone. The suit cart track is running only in the lands of the defendants. The

plaintiffs are having a separate cart track running through their lands and houses which is situated on the west of the suit cart track. The suit cart

track is running in the lands of the defendants which is 3 feet higher in level than the land of the plaintiffs. There was no panchayat as alleged by the

plaintiffs. As such, the suit has to be dismissed.

On the above pleadings, necessary issues were framed. During the course of trial, on the side of the plaintiffs, P.Ws.1 to 4 were examined and

Ex.A1 was marked. On the side of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B4 were marked. The reports and rough plans of

the Advocate Commissioner were marked as court documents Exs.C1 to C5.

After appreciation of the evidence on record, the trial Court dismissed the suit holding that the suit cart track runs only in the lands belonging to

the defendants and the same had been used by the defendants alone and therefore, the plaintiffs are not entitled to declaration and injunction.

Aggrieved by this finding, the plaintiffs filed an appeal before the lower appellate Court. During the pendency of the appeal, on behalf of the

plaintiffs, the further documents were marked as Exs.A2 to A12.

After considering the submissions made by the counsel for the parties and on perusal of the records, the lower appellate Court allowed the

appeal and decreed the suit holding that the plaintiffs have been using the suit cart track running through both the lands for the last 30 years and as

such, they have established their prescriptive right for user of the cart track and they are entitled to permanent injunction.

Challenging the same, the second appeal had been filed before this Court.

At the time of admission, the following substantial questions of law were formulated:

1) When the plaintiff had failed to establish that the suit cart track runs in S.No.295, is the court right in granting a decree for the entire use of the

cart track?

2) When it is admitted that the Commissioner had not measured the properties with reference to the survey plan, is the learned Judge right in

relying upon the Commissioner''s plan fixing the cart track in S.No.295 and 296?

3) When the evidence let in by the parties disclose that the suit cart track is only in S.No.296 when there is no evidence on the side of the plaintiff

establishing a right of user over the said cart track, is the District Judge right in granting the decree in favour of the plaintiffs?

The second appeal came up for final disposal before this Court. This Court after hearing the counsel for the parties, allowed the second appeal

by restoring the trial Court''s judgment dismissing the suit, on 20.2.1998.

Thereafter, the plaintiffs preferred S.L.P.No.8394 of 1999 before the Supreme Court. On noticing that the defendants died during the

pendency of the second appeal in the High Court and even then, this Court allowed the second appeal without any substitution application to bring

the L.Rs. of the defendants on record, the Supreme Court took the view that the High Court ought not to have decided the matter on merits when

the second appeal had abated due to the death of the defendants/respondents. On that reason, the Supreme Court set aside the judgment of this

Court and remitted the matter back to this Court to enable the plaintiffs to move before this Court to bring the L.Rs. of the defendants on record

and for setting aside the abatement.

This order was passed by the Supreme Court on 4th August 2000. Accordingly, the necessary applications were filed before this Court. By

the order dated 30.1.2001, those applications were allowed and the second appeal was restored. That is how the above second appeal has come

up before this Court again for the final disposal on merits.

Mr. T.R. Rajagopalan, the learned senior counsel appearing for the appellants/defendants would make the following contentions:

Though the plaintiffs stated that the suit cart track runs in S.Nos.295 and 296, no evidence has been let in by the plaintiffs to show that the suit

cart track runs in S.No.295 also. In the plaint and deposition, it is specifically stated that the defendants do not have exclusive right in the cart

track. It is well settled law that a person cannot ask independent right over the property and also right by way of prescription. In this case, the

plaintiffs have claimed the cart track both on independent right and by way of prescription. The Commissioner''s report and his deposition would

show that the suit cart track was obliterated and added to the plaintiffs'' land so as to make it that the suit cart track also runs through S.No.295.

Even assuming that the plaintiffs can claim right by prescription, in the present case, the plaintiffs have not proved that they have been using the suit

cart track uninterruptedly for more than the statutory period. The learned Appellate Judge in a single line without adducing any reason simply stated

that the evidence of P.Ws.1 to 4 is to be believed and the defendants'' evidence are to be rejected. This is wrong approach. The judgment and

decree of the Appellate Judge is perverse for not assigning any reasons for reversing the well-considered judgment of the trial Court. There are

materials to show that the suit cart track belongs to the defendants absolutely. The same has been established by Ex.B3. Ex.B1 would show that

the plaintiffs have already partitioned the property and it would refer to a cart track situate on the western side. P.W.1 also admitted that the cart

track is available on the western side. When the plaintiffs are having a cart track in their own land, they cannot claim right over the other man''s

property. Therefore, the judgment of the appellate Court has to be set aside and the judgment of the trial Court has to be restored.

To substantiate the above plea, the learned senior counsel for the appellants would cite the following authorities:

1) Raychand Vanmalidas Vs. Maneklal Mansukhbhai, ;

2) Purani Dhirajlal Amritlal Vs. Mehta Sankleshwar Aditram and Another,

3) Chapsibhai Dhanjibhai Danad Vs. Purushottam,

4) Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others,

5) SANTOSH HAZARI v. (PURUSHOTTAM TIWARI (DEAD) BY LRs. (2001) 1 Sup 642.

In reply to the above submissions, Mr. S.V. Jayaraman, the learned senior counsel appearing for the respondents/plaintiffs would make the

following submissions:

The reasonings given in the judgment of the appellate Court for decreeing the suit are perfectly justified. Since the evidence of P.W.1, the first

plaintiff is supported by three witnesses including the Advocate Commissioner who has been examined as P.W.2 through whom the reports and

plans have been marked as Exs.C1 to C5. It is not correct to contend that the lower appellate Court did not discuss the evidence available on

record. The reading of the judgment would show that the evidence has been properly analysed and the suit was decreed as prayed for. The

defendants cannot contend that the plaintiffs had taken inconsistent stand as the case of the plaintiffs is that the suit cart track runs through both the

lands in S.Nos.295 and 296 and as such, they have got the prescriptive right of easement with regard to the usage of the suit cart track and the

same cannot be construed to be the inconsistent stand. The reading of evidence of P.Ws.1 to 4 which is supported by the Advocate

Commissioner''s reports would clearly show that the plaintiffs have proved their easementary right and as such, the conclusion arrived at by the

lower appellate Court is correct. Under those circumstances, the second appeal is liable to be dismissed.

He would also cite the decisions in Chapsibhai Dhanjibhai Danad Vs. Purushottam, and DHANU PANDARAM v. KALI PANDARAM

(1999) 2 L.W.317.

I have carefully considered the submissions made by both the senior counsel appearing on either side and also gone through the judgments

rendered by both the Courts below.

At the outset, it shall be stated that the contention of the senior counsel appearing for the appellants that the learned Appellate Judge blindly

believed the evidence of P.Ws.1 to 4 and rejected the evidence of the defendants by simply stating in one line ""I accept the evidence of P.Ws.1 to

4 as reliable and probable and corroborated by clinching documents. D.W.2 is the father-in-law of D.W.1 and as such his evidence is highly

interested."" without appreciating their evidence and without assigning any reason for the same, cannot be accepted because though such an

observation is made by the Appellate Judge in paragraph 23, the evidence of P.Ws.1 to 4 supported by the Advocate Commissioner''s reports

and other documents and the evidence of D.Ws.1 and 2 and Exs.B1 and B2 have been discussed in detail and appreciated in paragraphs 12 to

22.

Though the judgment rendered by the appellate Court would not refer to the reasonings given by the trial Court, the materials available on

record produced by both the parties have been referred to and after thorough appreciation of the evidence, the conclusion has been arrived at by

the appellate Court to decree the suit. On going through the judgments of both the Courts below, it is clear that the reasonings given by the

appellate Court are acceptable, while comparing with the reasonings given by the trial Court.

That apart, as requested by the senior counsel on both sides, this Court also has gone through the entire oral and documentary evidence

available on record. On perusal of those records, I am of the considered opinion that the plaintiffs have proved their claim for declaration and for

permanent injunction in respect of the suit cart track. My reasonings are given below.

The case of the plaintiffs is that they own landed property in S.Nos.295 and 297 in Karumapuram village. It is also admitted by them that the

defendants own land in S.No.296 and the said land is situated immediately on the east of the plaintiffs'' land in S.No.295. It is the specific case of

the plaintiffs through plaint and evidence that there is a cart track running in between both the Survey numbers, namely 295 belonging to the

plaintiffs and 296 belonging to the defendants and both the parties are using the cart track for reaching the panchayat road.

In the written statement filed by the defendants, the existence of the suit cart track was not disputed. The same has been admitted by the

defendants through the evidence of D.W.1. But however, the specific case of the defendants is that the suit cart track is running only in S.No.296

and it is meant for the defendants alone and the plaintiffs have no right.

Under those circumstances, the main question which has to be considered by the Court is whether the case of the plaintiffs that the suit cart

track runs in both S.Nos.295 and 296 or the suit cart track runs only in S.No.296 belonging to the defendants?

The trial Court appointed the Advocate Commissioner to inspect the area and submit his report. P.W.2, the Advocate Commissioner went

and inspected the area and filed two reports, one dated 12.10.1979 and another dated 7.3.1981. As per the evidence of the Advocate

Commissioner and his reports and plans Exs.C1 to C5, the suit cart track runs in some place in S.No.295 and other places in S.No.296. Ex.C4,

the plan and Ex.C3, the report prepared on 7.3.1981 and the evidence of P.W.2,the Advocate Commissioner would make it clear that the portion

of the cart track which runs in S.No.295 was given in red colour and portion in the suit cart track which runs in S.No.296 was given in blue colour.

It is the specific evidence of the Commissioner that ''B'' to ''C'' marked as red portion in Ex.C5 runs in S.No.295 and ''C'' to ''H'' which is

marked as blue portion runs in S.No.296. P.W.2, the Advocate Commissioner would specifically state that the measurements were taken in the

presence of both the parties with the help of a District Surveyor.

It is not disputed that S.No.295 is the land belonging to the plaintiffs and S.No.296 is the land belonging to the defendants. This aspect of the

evidence let in by P.W.2 curiously has not been challenged. In other words, not even a suggestion was put to him that the Advocate

Commissioner''s report was wrong. Furthermore, there is no objection filed by the defendants objecting to the contents of the Advocate

Commissioner''s report dated 7.3.1981, which was filed on 21.3.1981.

In the light of this independent and vital material through P.W.2, the evidence of P.W.1 on the side of the plaintiffs and the evidence of D.W.1

on the side of the defendants is to be weighed.

Before considering the oral evidence of P.W.1, it would be relevant, in this context, to refer to the averments in the plaint:

The plaintiffs and the defendants have been using the suit cart track for reaching the said panchayat road. The cart track shown in the rough plan

as ABC is being used by the plaintiffs. The cart track shown as ABD is being used by the defendants for reaching the shed. The said cart track has

been in existence for the last more than 60 years and the parties have been also using the same for their respective lands.

The cart track AB shown in the plan runs almost along the two survey numbers namely partly in S.No.295 and partly in Survey No.296.

The reading of the entire plaint would make it clear that it is the specific case of the plaintiffs that both the plaintiffs and the defendants have

been using the suit cart track which runs through both the lands for taking their men, cattle and carts for their lands for more than 60 years to the

knowledge of everybody including the plaintiffs and the defendants.

In consonance with the above averments, the first plaintiff as P.W.1 would state in the chief examination as follows:

@ehDk; gpujpthjpfSk; jhth jlj;ij mDgtpf;fpnwhk;/ tz;o khL bfhz;L nghft[k;. ML khLfs; bfhz;L nghft[k;. $d'';fs; elg;gjw;Fk; cgnahfpj;J tUfpnwhk;/

tz;o jlj;jpw;F jr;r'';fhL ,l;blhpbad bgah;/ Ch;fhu'';fSf;F bjhpa[k;/@

In the cross-examination, he would specifically state:

@jhth ,l;nlhp v'';f epyj;jpYk; gpujpthjpfs; epyj;jpYk; nghFJ/ rptg;g[ epwj;jpy; vf;;!;/rp/4?apy; fhl;oapUg;gJ v'';f epyj;jpy; nghFJ/ g[S fyhpy; nghdJ

mt'';f epyj;jpy; rptg;g[ fyhpy; fhl;oapUg;gJ v'';f epyk; kWgoa[k; gpujpthjpfs; epyj;jpy; nghFJ/@

In support of his evidence, P.Ws.3 and 4 have been examined, who are the villagers. P.W.3 is a Village Karnam. We cannot straightaway

reject his evidence merely because he admits that he opened a finance company along with P.W.1. On the other hand, he is the scribe of Exs.B1

and B2 which have been marked through D.Ws.1 and 2. It was suggested to him that he came and requested Rs.500/- as loan from the

defendants and since the said loan was not given, he became hostile to the defendants. The said suggestion was denied.

On going through the evidence of D.W.1, the second defendant, it is seen that he speaks about the demand of loan of Rs.500/- from him by

P.W.3 for the marriage expenses of his brother. D.W.1 admitted that P.W.3 Karnam was running a finance company. When he was running a

finance company, there was no necessity for him to ask for a loan from D.W.1. At any rate, the same may not be the reason for P.W.3 to give a

false evidence against the defendants who are the local villagers, especially when he is working as a Karnam in the said village.

As noted above, it is admitted by the defendants that Exs.B1 and B2 were written by P.W.3. His specific evidence is that there is a well in the

south-east corner of S.No.295 and to reach the well, the plaintiffs have to use the suit cart track and the said suit cart track runs through both the

lands. The relevant evidence is as follows:

@nuhow;F mLj;J bra;ayhhp bts;syhhpf;F tlg[wk; 295 mjd; bjd;fpHf;F K:iyapy; fpzW. jhth jlk; tHpahf nghFk; fpzW ,Jjhd;/ jhth jlk; ,uz;Lngh;

fhl;oYk; nghfpwJ/@

That apart, the evidence of P.W.4 who is related to both the plaintiffs and the defendants would add strength to the plaintiffs'' case. He is aged

about 85 years. According to him, the suit cart track which runs through both the lands is existing for long number of years.

Therefore, there is no reason to reject the evidence of P.W.1, supported by P.Ws.3 and 4, particularly when the same is corroborated by

Exs.C1 to C5 and the oral evidence given by P.W.2, the Advocate Commissioner. Therefore, the case of the defendants that the suit cart track

runs only in S.No.296 cannot be accepted to be true.

It is strenuously contended by the senior counsel appearing for the appellants that P.Ws.1 and 2 would admit that another cart track is

available on the western side and the same has been mentioned in Ex.B1, the partition deed executed between the plaintiffs and when the plaintiffs

are having a cart track in their own land, they cannot claim right over the other man''s property.

This contention, in my view, may not deserve acceptance, since the claim of the plaintiffs is one of their prescriptive right. Furthermore, the said

cart track which is situate at the western side was put in the year 1974 for the use of the plaintiffs party among themselves. That apart, as P.Ws.3

and 4 would state that the suit cart track is the only way to reach the well which is situate in S.No.295 at the south-east end.

It is further noticed that during the pendency of the suit, there was a panchayat. In the panchayat, both the parties were directed by the

panchayatdars to cut the trees and to repair the suit cart track to use the same by both of them and consequently, the trees were cut by the

plaintiffs and the defendants. However, the defendants had not come forward to register the same in the Panchayat Board Office.

This aspect of the evidence has been spoken to by P.W.4, one of the panchayatdars. Merely because P.W.4 is related to P.W.1, his evidence

cannot be rejected, as he stated that he is related to the defendants also. Furthermore, the cutting of the trees as stated by P.Ws.1 and 4 has been

sufficiently corroborated by the evidence of P.W.2, the Advocate Commissioner, who stated that the trees which were standing earlier were found

cut when he visited second time.

Much was said about Exs.B1 and B2. But in my view, Exs.B1 and B2 would not be relevant to decide the issue which is raised in this Court.

Similarly, the evidence of D.W.1 does not inspire confidence, in view of various infirmities pointed out by the lower appellate Court. Furthermore,

the evidence of D.W.2 also is of no use for the defendants, as he himself would state that the suit cart track is in existence for the past 40 years. He

would also admit that the first defendant is his son-in-law and he has married the daughter of P.W.1''s elder brother. In such a circumstance, his

evidence would not in any way help the case of the defendants.

Under those circumstances, the lower appellate Court on facts correctly concluded that the plaintiffs have established their prescriptive right of

easement in the suit cart track which runs through both the lands, by showing their enjoyment for more than the statutory period and the said finding

need not be disturbed by this Court by invoking Section 100 C.P.C., when there is no substantial question of law. Therefore, the second appeal is

dismissed. No costs.