Samsudeen vs Krishnan and others

K. Sampath, J.—The third defendant is the appellant. Respondents 1 and 2 filed suit O.S. No. 1139/80 before the District Munsif of

Dindigul against the appellant and respondents 3 to 8 for declaration of their joint ownership over a pathway, their right of way over it as an

easement of necessity and for a consequential injunction restraining the appellant and respondents 3 to 8 from causing any obstruction or hindrance

to such user. The averments in the plaint necessary for the disposal of the Second Appeal are as follows:

Respondents 1 and 2 were the owners of the land shown in red colour and marked as ABCD in the plaint plan. Originally the properties in

S.Nos.162-A/7-A, 162/7-B and 162/7-C situate south of ABCD belonged to two brothers Ramasamy Vanniyanar, Thiruvengada Vanniyanar

and their unmarried blind sister Pappathiammal. In a partition that took place about 50 years prior to the filing of the suit in S. No. 162-A/7-A, the

western portion fell to the share of Ramasamy Vanniyanar, the middle portion to Thiruvengada Vanniyanar and the eastern portion to

Pappathiammal. At the time of partition, the land ABCD had been carved out for the use of the allottees of the middle and eastern portions. The

western portion had access from the Railway Colony Road in the west and for the access of the middle and the eastern portions, the suit pathway

7'' north to south and marked as ABCD was being used as pathway for ingress and egress by the middle and eastern allottees. There was a sub

division of S.F. Nos. 162-A/7-A as 162/7-A, 162/7-B and 162/7-C and the same had been in the possession and enjoyment of Ramasamy,

Thiruvengadam and Pappathiammal respectively. Except the suit pathway, there was no other access available. The first respondent was the son of

Thiruvengadam and after Thiruvengadam''s death in 1950, the middle portion, viz. S.F. No. 162/F-B had been in his possession and enjoyment.

After the life time of Pappathiammal, her heirs had been dealing with the eastern portion allotted to her and after successive sales, Lakshmana

Vanniyanar became the owner of the said portion, viz. R.S.No.162/7-C. The western portion appeared to have been conveyed in favour of the

fourth respondent''s father one Doraisamy Chettiar. The first respondent and his predecessors-in-title were in enjoyment of the ABCD suit land as

also Lakshmana Vanniyanar and his predecessors-in-title for a long number of years and they had all prescribed title by adverse possession. The

third respondent attempted to convey the suit land in favour of the appellant and he tried to interfere with the first respondent''s possession and

enjoyment. The first respondent had also laid his tap connection through the suit lane and had been paying water tax and house tax. The third

respondent Municipality at the instigation of the fourth respondent was giving out that it would cause disconnection of water tap situated within the

suit lane. The second respondent is the son of the first respondent. The fifth respondent was the mother of the fourth respondent and respondents 6

to 8 were the sister and brothers of the fourth respondent. They had sold the western house site to the appellant on 1-10-1980 for Rs.5000/-. By

such sale the right of the first respondent with regard to the use of the pathway was affected. The suit was therefore necessitated.

The defence in essence was that there was an alternative pathway on the east of the first respondent''s property proceeding towards south and

turning towards west and it was being used by the first respondent and the eastern and southern owners had access. The plaint plan also was

disputed as also the other averments in the plaint, which are not necessary to notice.

The third respondent Municipality, which was the second defendant in the suit, contended that it was an unnecessary party, that pursuant to the

application by the first respondent an estimate was prepared and tap connection was given to him after receiving the necessary charges and

respondents 4 to 8 did not object to the tap connection being given to the first respondent.

The trial court held that respondents 1 and 2 had got right of way over the northern portion of R.S.No.162/7-A, that they had no other means

of access and that they were entitled to the right of way over the northern portion of R.S. No.162/7-A as an easement of necessity and they were

entitled to a permanent injunction as prayed for. The learned District Munsif decreed the suit by his judgment and decree dated 22-02-1982. The

appellant and respondents 4 to 8 filed appeal A.S.No.""60/83 before the subordinate Judge, Dindigul, and the learned Subordinate Judge by his

judgment and decree dated 25.01.1984 confirmed the decision of the trial court. Aggrieved the appellant has filed the present Second Appeal.

At the time of admission the following substantial questions of law were raised for decision in the Second Appeal:

(1) Whether Section 13(c) of the Indian Easement Act can be attracted when the plaintiffs have alternative pathway?

(2) When an alternative pathway is available the findings of the Courts below are right in the granting of relief on the ground of easement of

necessity? And

(3) Whether the Courts below are right in granting relief for pathway on the ground of prescription when there is no proof for such prescriptive

right or any grant for such long user?

Mr. V. Natarajan, learned Counsel for the appellant, submitted that respondents 1 and 2 and the plaintiffs in the suit had suppressed the

existence of an alternative pathway on the east of their property which went south and then turned west along the property of Lakshmana

Vanniyanar, who was examined as D.W.2. The learned Counsel based his arguments on the provisions of Section 13(c) of the Easements Act and

submitted that when there was in existence an alternative pathway, however inconvenient it might be, their right of easement of necessity could not

be declared. The learned Counsel also commented on the averments in the plaint and also the allegations in the suit notice, wherein respondents 1

and 2 had claimed absolute rights over the suit claim. According to the learned Counsel absolute rights and easement of necessity were

contradictions in terms and the suit ought to have been dismissed on this solitary ground. The learned Counsel further submitted that the

Commissioner appointed in the suit also found a pathway on the east of the property of respondents 1 and 2 and in view of that finding they should

be non-suited. The learned Counsel also made a point of the non-joinder of the eastern owner, viz. Lakshmana Vanniyanar-D.W.2 as a party to

the suit. In support of his submissions the learned Counsel relied on the following decisions:

(1) Mahaboob Khan Sahib Vs. B. Govindarajulu Naidu,

(2) Mariyayi Ammal and others v Arunachala Pandaram (AIR 1956 Mad 584=69 L.W.435)

(3) The Bank of India Ltd., Madras v. M/s Sarathy Brothers and another (82 L.W. 191)

(4) R. Louis @ R.P. Thambi Raja and another v. R. Irudayamary Ammani (1991 I L.W. 557) and

(5) Durga Pada Mukherjee and another Vs. Ambujakshya Ganguli,

Mr. R. Subramanian for Mr. V. Krishnan, learned Counsel for the contesting respondents 1 and 2, submitted that unless the alternative pathway

was available as of right, there was no question of refusing the relief claimed by respondents 1 and 2 regarding easement of necessity. As regards

the inconsistent plans referred to by the learned Counsel for the appellant, Mr. Subramanian submitted that respondents 1 and 2 had elected to

pursue their remedy with regard to easement of necessity alone and the same would be evident from the issues framed in the suit. The learned

Counsel also drew attention to the report of the Commissioner where the passage as claimed by the first and the second respondent had been

found to be a well laid passage. The learned Counsel also relied on the Commentary by Katiyar on Easements. The learned Counsel lastly relying

on the decision of this Court in AIR 1929 Mad 963 Govinda Bhatta and others v. Maruvala Rama Bhatta submitted that the finding regarding

necessity was a question of fact and the High Court could not interfere u/s 100 of the Code of Civil Procedure.

There is absolutely no quarrel over the proposition of law laid down by the various decisions cited by the learned Counsel for the appellant that

if there was an alternative pathway, however inconvenient it might be, still the party would not be entitled to have a declaration as an easement of

necessity. I have been taken through the pleadings, the oral and documentary evidence, the report and the plan of the Advocate Commissioner.

The plaint plan and the Commissioner''s plan and the report make it clear that the suit lane is a well laid out pathway. No doubt, the Commissioner

has shown another pathway to the east of the property of respondents 1 and 2, which pathway goes south, enters the property of D.W.2 and

portions west. There is no dispute that this is an access available to the parties provided it is made out that this pathway can be used by

respondents 1 and 2 as of right.

So far as the suit pathway is concerned, the courts below have adverted to the oral evidence on the side of respondents 1 and 2 and found that

was an access available to respondents 1 and 2. So far as the alternative pathway is concerned, it is the definite evidence of D.W.2 that unless he

permits the parties to use that pathway, nobody could use that pathway as of right. To put it differently, - the use of the so called alternative

pathway can be only at the pleasure of D.W.2. It is also to be noticed that there is a fence between the property of respondents 1 and 2 and the

southern property of D.W.2

It would be useful to refer to a passage from Katiyar Law of Easements and Licences 11th Edition 1993 page 245 dealing with Section 13 the

learned Author in paragraph 6 has observed as follows:

In order to claim an easement of necessity it must be shown that it is one without which the property retained upon a severance cannot be used at

all. It is not enough if it is shown that it is merely necessary to the reasonable enjoyment of property or that in the absence of an easement

inconvenience would be felt Easement of necessity would no longer be available when alternative way is available to the claimant of that right. Thus

the plaintiff who claims a right of pathway through the field of another has to prove that he has no alternative means of access, however

inconvenient, to his field. He cannot be said to have an alternative way unless he has the lawful right to use that way.

Again, at page 249 the learned Author has observed as follows:

Clearly no way of necessity arises if, at the time of the grant, the party claiming it owned other land which gave access. But merely permissive use

of other land as a means of access is disregarded, Barry v. Hasseldine (1952 2 All E.R. 317)

It is also to be noticed that there was dispute between respondents 1 and 2 and D.W.2 regarding the vacant space left south of the house of

respondents 1 and 2 since D.W.2 claimed it as common and respondents 1 and 2 claimed it as their exclusive property, that there was enmity

between them on this score. D.W.2 being the absolute owner of the property to the east of the property of respondents 1 and 2, as rightly found

by the courts below, he might withdraw his permission to respondents 1 and 2 to use the so-called alternative pathway at any time on account of

the disputes between them. Respondents 1 and 2 cannot use the property belonging to D.W.2 as of right.

As already observed, the decisions relied on by the learned Counsel for the appellant presuppose the existence of an alternative pathway for

refusing relief of the easement of necessity. In the present case, it has not been established that the alleged alternative pathway could be used as of

right by respondents 1 and 2, D.W.2 being the exclusive owner of the alleged alternative pathway.

The courts below have reached the finding regarding the non-existence of an alternative pathway as of right and found the existence of the suit

pathway as the only pathway available to respondents 1 and 2 for access. This finding has been reached on an appreciation of the material

evidence on record. No exception can be taken to the said finding.

Regarding the non-joinder of Lakshmana Vanniyanar as a party to the proceedings, it cannot be stated that D.W.2 is a necessary party to the

suit. Even assuming that he was a necessary party to the suits, his non-impleading would not affect the right claimed by respondents 1 and 2 and

they cannot be non-suited for non-impleading D.W.2 as a party. In view of the discussion above, all the substantial questions of law raised are

answered against the appellant and the Second Appeal is dismissed. There will, however, be no order as to costs. Consequently, the miscellaneous

petition C.W.P. No. 13479/84 is also dismissed.