LAWS(PVC)-1934-4-85

CHINNASAMI GOUNDAN Vs. ASBALASUNDARA MUDALIAR

Decided On April 09, 1934
CHINNASAMI GOUNDAN Appellant
V/S
ASBALASUNDARA MUDALIAR Respondents

JUDGEMENT

(1.) The plaintiff, who is the appellant, is at present the owner of S. No. 6/2 in the village of Keeza Ami and he sued to restrain defendants 1 and 2, who claimed to be the trustees of a neighbouring Pillayar temple, from interfering with the plaintiff's use of a pathway across S. No. 1 (marked B in the plaint plan) leading from his smithy in S. No. 6/2 to a public road. The averment in the plaint was that defendants 1 and 2 had no right to or interest in S. No. 1 and the plaintiff had a right to use the pathway as an easement of necessity or by prescription or by mamul. Defendants 1 and 2 pleaded that S. No. 1 belonged to the Pillayar temple of which they were the trustees and they denied that the plaintiff had acquired any right to use the pathway whether by prescription or by mamul or as an easement of necessity. The Government was added as defendant 3 and as Mr. Krishnaswami Ayyar had laid great strees upon the attitude taken by the Government in this litigation it is as well to set out what exactly the Government's written statement states. The Government said: The pathway concerned in the suit vests in the Taluk Board, Vellore. This defendant is not interested in the present suit and there is no cause of action against him.

(2.) I am unable to understand this statement of the Government as justifying the argument that the plaintiff is a licensee from the Government in respect of the user of this pathway or that the Government has authorized the plaintiff in his individual capacity to use this pathway. The view of the Government that it is vested in the Taluk Board of Vellore may be right or may not be right. That has not been put in issue and tried. But in this litigation the plaintiff is asserting his personal right and not a right as one of the public entitled to use a public path way. If I understand Mr. Krishnaswami Ayyar's argument aright, his main contention was to the following effect: The appellate Court has held that the temple is not the owner of S. No. 1 and it continues to belong to the Government and defendants 1 and 2 as representing the temple have no right to interfere with the plaintiff walking across S. No. 1, so long as the Government who is the owner of that plot, does not choose to object. This contention over, looks what is stated in another portion of the lower appellate Court's judgment (in para. 12) where the learned Subordinate Judge says: It must be observed that the use of the servient tenement has been allowed by its real owner, the Government, in favour of the temple. It follows that the persons responsible for the management of the temple are in possession of the property. They have therefore the right to obstruct anyone from unlawfully making use of the site in question as a pathway.

(3.) It may be a question whether a mere stranger can obstruct another person in the exercise of even what may be called an inchoate right of easement. But on the evidence in the case I am unable to accept the position that defendants 1 and 2 were mere strangers so far as S. No. 1 is concerned. In the Diglott Kegister S. No. 1 is no doubt described "puramboke" but in the remarks column against that number there is a note "temple." The exact position is made dear by the statement of the Deputy Tahsildar examined as P.W. 1 that in the case of temple purambokes the Government has a right to enter upon the land when it is not used for the purposes or benefit of the temple. The District Munsif, though he deoided in favour of the plaintiff on other grounds, also takes the view that the land over which the pathway is claimed should be deemed to form a portion of the temple land : see para. 9. It is not necessary for the purpose of the present case to define the exact nature of the interest that the temple possesses in S. No. 1. All that I am concerned to point out is that the case cannot be compared with that of a mere stranger interfering with the use of a right of way by a person who is in the process of acquiring it by a course of prescriptive enjoyment.