CHINNARAJU ASARI SARASWATHI AMMAL Vs. KAMSALAI AMMAL

JUDGEMENT

(1.) The defendants in a suit for permanent injunction and mandatory injunction, whose defence plea was rejected by both the Courts below, have brought forth this second appeal.

(2.) The respondent/plaintiff sought the relief of declaration of the right of easement to the plaintiff to use the suit property for the purpose of scavenger going and cleaning the latrine of the plaintiff' s house and to drain the drainage water and as a passage to reach T.S.No.508. along with the relief of permanent injunction and also mandatory injunction for removal of the fence at AD in the plaint plan with the following averments. The suit property is a lane measuring 135 + feet east-west and 6 , feet north-south, which has been shown as ABCD in the plaint plan. The said lane is comprised in T.S.No.506. The plaintiff and her predecessor-in-title have been in occupation of the northern half of the lane, while the defendants and their predecessor were in enjoyment of the only southern half of the lane. The northern half of the lane is adjoining to the south of Door Nos.29 and 30, measuring 3 1/8' north-south and 145 + ' east-west. A drain is also running along with the portion of the lane. It is the only way, by which the drainage water can be drained, and the plaintiff can reach the property, situated on the east of the Door No.30 i.e. in Survey No.508. The defendants filed a suit in O.S.No.823 of 1965 on the file of the said Court for declaration and injunction restraining the plaintiff from interfering with the defendants' enjoyment. In the said suit, the suit property, what was shown as item 2, was T.S.No.508. The Court of the District Munsif decreed the suit on 25.7.1967. As against the decree, the plaintiff took the matter on appeal in A.S.No.264 of 1967 on the file of the Sub Court, Cuddalore. The first appellate Court granted a decree dated 20.3.1973, stating that the declaration and injunction by the lower Court were subject to the plaintiff taking a scavenger to the latrine through the suit lane. The defendants took the matter on appeal before the High Court in S.A.No.507 of 1973, wherein the appeal was allowed on 4.2.1976, and the modification done by the first appellate Court in respect of the item No.1 was set aside, and in respect of item No.1, the defendants therein were given liberty to take appropriate proceedings if they were so advised to enforce the right of easement. In such circumstances, the instant suit is brought forth by the defendant in that suit, who is the plaintiff herein. The plaintiff herein cannot reach the property in T.S.No.508, except through the lane. Apart from that, the scavenger cannot go to door No.20, which is the property of the plaintiff, to clean the latrine, except through the lane, and the drainage water had to be drained only through the suit property. Except this way, there was no way, by which the scavenger can reach the plaintiff's property situated in T.S.No.506, and the drainage water cannot also be drained by any other way. She also cannot reach the property situated in T.S.No.508. Hence, it is absolutely essential as an easement of necessity. In any event, the plaintiff and her predecessor in title by long user have prescribed title by adverse possession. Taking advantage of the judgment of the High Court, the defendants have put up a fence in AD, and thus, they have prevented the plaintiff from using the lane. The drainage water completely got stagnated, since the defendants have blocked the way. The plaintiff was not in a position to drain the drainage water, nor was she in a position to reach the property in T.S.508, and hence, there arose a necessity for filing the suit for the said relief.

(3.) The suit was vehemently resisted by the defendants, stating that the allegation that the drainage water has to be drained through the suit lane, and the plaintiff has no other way to drain the same is denied; that since the plaintiff has no title to the property in T.S. No.508, she cannot have the benefit of the suit lane to reach the said property; that neither the plaintiff nor her predecessor-in-title has been in possession and enjoyment of the property in T.S.No.508; that the plaintiff's claim over the property in T.S.508 has been negatived by the Courts in the proceedings in O.S.No.823/65; that it has also been held by the High Court that if at all the plaintiff has any right, she can well agitate the same before the Civil Court; that if really the plaintiff is entitled to the suit lane, then she would have asked the same in the said suit itself; but, she has not done so; that the claim now made by the plaintiff, cannot be sustained; that it is denied that the defendants have put up a fence at AD; that the draining of drainage water is not an esementary right; that the defendants were conducting business in the suit property for the past 40 years; that during this period, neither the plaintiff nor her predecessorin-title was allowed to go through the said lane; that the plaintiff is not entitled to any relief, and hence, the suit was to be dismissed.