SAMSUDEEN Vs. KRISHNAN

JUDGEMENT

(1.) 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.

(2.) 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 partion 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-tiile were in enjoyment of the ABCD suit land as also Lakshmana Vanniyanar and his predecessprs-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.

(3.) 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, 1882 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 v. Govindarajulu Naidu (AIR 1936 Madras 142) (2) Mariyayi Ammal and others v. Arunachala Pandaram (AIR 1956 Madras 584=69 L.W. 435) The Bank of India Ltd., Madras v. M/s Sarathy Brothers and another (82 L. W. 191) R. Louis @ R.P. Thambi Raja and another v. R. Irudayamary Amman (1991-1 L.W. 557) and Durga Pada Mukherjee and another v. Ambujakshya Ganguli (AIR 1993 Calcutta 125).