PALANI Vs. PERUMAL

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment of the learned Subordinate Judge, Salem, in A.S. No. 7 of 1983 dated 30.8.1983, setting aside the judgment of the learned District Munsif, Salem in O.S. No. 496 of 1978, dated 14.10.1981.

(2.) ACCORDING to the plaintiff, the suit property belongs to the plaintiff by virtue of the settlement deed dated 12.9.1973 and that his predecessors in title were in possession and enjoyment of the same in their own rights. The suit property is measuring 45-1/2 feet East-West and 16-1/4 feet South to North. ACCORDING to the plaintiff, the suit house was built about 60 years ago and its southern and northern walls belong to the plaintiff absolutely. On the East of the property is Pachamuthu Mudali Street and on the West is Vannia Kula Kshatria Street. The defendants are undivided brothers of a Hindu Joint family and they are the owners of the house on the South of the plaintiff's house and they have no right in the house and in the southern wall of the suit house. The southern wall of the suit house was about 45-1/2 feet in length and the same was built by the grand-father of the plaintiff about 60 years ago to support his house and from that time it is in the exclusive use and enjoyment of the plaintiff and his predecessors in title and even otherwise the plaintiff was entitled to the suit wall by long use and enjoyment over a statutory period of 60 years and more. The defendants attempted to grab the house' of the plaintiff and having failed in their attempts they began to give trouble to the plaintiff in the enjoyment of his house. On 27.5.1978 while the plaintiff was carrying out some repairs in the suit wall, the defendants and their family members obstructed the plaintiff and hence the suit.

(3.) IT is true that no party may be allowed to put forth inconsistent pleas which would be in fact, a principle consistent from the moral angle. But the law permits alternate pleas to be put forth where two parallel legal rights are available to the party. For instance, the plaintiff may be entitled to pray for title to the property by virtue of a sale obtained by him, bona fide and for valid consideration and incidentally he may have also continued to be possession of the suit property over the statutory, period, holding the property in his own right, asserting title in himself and in such a case there are two legal rights available to him, and there is nothing wrong either legally or morally to plead both the rights. An individual might have acquired easement by prescription within the parameters of Section 15 of the Easements Act and also simultaneously as an easement of necessity within Section 13 of the said Act or otherwise. In this case also, neither legally nor morally there is anything wrong in the party raising both the pleas. In fact in the very judgment relied on by learned counsel for the appellants, Ramaprasada Rao, J. as he then was has upheld two easementary rights namely, (i) easement of necessity, and (ii) easement by prescription.