K SOUNDARARAJAN Vs. GURUVAMMAL

JUDGEMENT

(1.) FIRST defendant in O.S. No. 548 of 1995 on the file of Principal District Munsif, Srivilliputhur is the appellant. The parties herein will be referred to according to the rank in the suit.

(2.) THE suit is to declare the III schedule property is part of II schedule property and to declare it is a common pathway and for a mandatory injunction directing the first defendant to remove the structure and also the borewell in the property.

(3.) COUNSEL for the appellant did not challenge the finding on point No. 1 entered by the lower appellate Court. In point No. 1 the lower appellate Court has found that III schedule item in the plaint is part of II schedule item and consequently it is a common pathway. This finding is not challenged. If so, the only question that arises for consideration is whether the first defendant is entitled to have a borewell or other structure in the common pathway. Reliance was placed by the learned counsel on the decision rendered by me in Krishnammal v. Periasamy (1997-I-M.L.J. 309). COUNSEL relied on the head note in the decision, which reads thus: "It is not permissible for a co-owner of co-sharer to change the mode of user of a common passage without the consent of other co-sharers. As between the co-sharers of a common passage such has the right to lay underground drains. In such a case there is no question of common passage being a servient tenement in respect of any of the promises of the co-owners. Every co-owner has the rights to make full use of the common passage. Even though a co-owner has the right to lay a new underground drains in the common passage, but such laying of new drains should not interfere with the existing drains and with the right of other co-owners of the passage. A person's right to drains his own premises by laying underground pipes in his own land is an incident of legal ownership and is not easement. The question of tenement arises when two tenements are involved, the dominant tenement to which the right belongs and the servient tenement on which the obligation is imposed. Such a situation does not arise between co-owners of common passage having right of drainage through it. When a right of drainage is given to the co-owners by deed of partition to the erstwhile co-owners, it is a right to drain the house and premises specified therein and is a joint right of drainage by the underground process. Moreover, such right is not restricted only to the buildings existing at the time of partition and the co-sharers have got the right to lay new underground drain during the common passage for the new buildings which may be erected on the premises provided there is no restriction in the deed of partition against construction of a new building. So, it is therefore clear that when a common passage belongs to both the plaintiff and the defendant, there is no question of any one party having an easement right over the same. It is a joint property and any co-owner has to use such property reasonably in the sense that his user does not amount to ouster of other co-owners. So co-owner can complain that the use of the common passage by the other causes an unnecessary or additional burden upon the common passage. A co-owner carrying his carts, bullocks and ploughs through the joint property cannot be said to have caused unnecessary inconvenience to the other co-owner. In S.B. Katiyaris Easements & Licences ? 11th edition (1993) at pages 222, 223, the learned author has extracted with approval, a passage from the decision reported in Subbiah Goundou v. Ramaswamy Goundan , A.I.R. 1973 Mad. 42 at 45=(1992) 85 L.W. 659 wherein it was held thus: