Challenge in this second appeal is to the Judgment and decree dated 27.12.2004 passed in Appeal Suit No.230 of 2004 by the Additional Sub Court, Dindigul.
2. The appellants herein as plaintiffs have instituted Original Suit No.556 of 1998 on the file of the First Additional District Munsif Court, Dindigul for the reliefs of declaration, perpetual and mandatory injunctions, wherein the present respondent has been shown as sole defendant.
3. The nubble of the plaint is that the suit property is the absolute property of the defendant. The plaintiffs are having lands abetting the suit property. The suit property is being used as pathway from time immemorial. One Lakshmanan and others have instituted Original Suit No.746 of 1992 against the first plaintiff, defendant and others with regard to a pathway which situates in poramboke. Since a dispute has arisen with regard to poramboke pathway which situates in Survey No.203, to avoid future dispute, the defendant and second plaintiff have entered into an agreement on 14.05.1993, wherein it has been agreed by both parties to treat the suit property as common pathway. The defendant has encroached a portion of suit pathway and put up a pial. Since the defendant has put up such construction, the plaintiffs cannot use the suit pathway. The plaintiffs are having easement of necessity over the same. After the institution of the present suit, the defendant has planted seven coconut saplings and also plantine saplings. Under the said circumstances the present suit has been instituted for declaring that the plaintiffs are having easement of necessity over the suit property and also for restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiffs by means of perpetual injunction and also for passing mandatory injunction so as to remove the pial put up by the defendant.
4. In the written statement filed on the side of the defendant it is averred that the defendant is an illiterate and under the guise of conducting Original Suit No.746 of 1992, the first plaintiff has obtained thumb impression of the defendant as well as the signature of her husband on various blank papers. It is false to say that on 14.05.1993, an agreement has come into existence with regard to suit property so as to treat the same as common pathway. There is no pathway in the property of the defendant. The defendant has put up construction prior to 4. years. In the suit property the plaintiffs are not having any semblance of right. The plaintiffs have instituted the present suit purely on false grounds and therefore, the present suit deserves to be dismissed.
5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after perpending both the oral and documentary evidence has decreed the suit as prayed for. The Judgment and decree passed by the trial Court have been challenged before the first appellate Court in Appeal Suit No.230 of 2004.
6. The first appellate court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal whereby and whereunder set aside the Judgment and decree passed by the trial Court and ultimately dismissed the suit. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiffs as appellants.
7. At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration:
(i) Whether the lower appellate Court is not right in arriving at the conclusion without reading of the plaint allegations that are specific in para 8 under Section 13 of the Easement Act?
(ii) Whether the lower appellate Court is not right in holding that Ex.A8 dated 14.05.1993 is only a confirmation of the pre-existing facts and circumstances but not the creation of new right under the document that requires registration?
(iii) Whether the lower appellate Court is not right in not referring to 1997 III Law Weekly 644, which is approved by the trial Court?
(iv) Whether the lower appellate Court is not right in not upholding that when section 13 of Easement Act interpreted correctly that Expression of necessity implies that it is not a Rule of convenience and it is only a certainty in the property as a right cannot be enjoyed without the exercise of certain privileges or burden of the property on the another?
(v) Whether the appellate Court is wrong in not considering the findings of the trial Court in para 13 where in exercise of the pleading that easement of necessity is pleaded and proved but stating at the same time in its Judgment para 13 as 'NOT PLEADED', when it is confirmed in para 12 of the trial Court Judgment?
8. The sum and substance of the case of the plaintiffs is that the suit property is the absolute property of the defendant and the same is being used as pathway from time immemorial and in respect of pathway which situates in Survey No.203, Original Suit No.746 of 1992 has been instituted by one Lakshmanan and others against the first plaintiff, defendant and others and in order to avoid future dispute, an agreement has come into existence between the plaintiffs and defendant on 14.05.1993 with regard to suit property and thereby agreed to treat the same as common pathway and the houses of the plaintiffs and defendant are situate immediately on the western side of the suit property and except the suit property the plaintiff is not having any other way so as to reach main road which situates on the northern side of the suit property and since the defendant has been obstructing the peaceful possession and enjoyment of the plaintiffs by way of putting up construction, the present suit has been instituted for the reliefs sought for in the plaint.
9. The crux of the case of the defendant is that the suit property is the absolute property of the defendant and at any point of time no pathway has been existence and under the guise of conducting Original Suit No.746 of 1992 the first plaintiff has obtained thumb impression of the defendant as well as the signature of her husband on various stamp papers and the same has been utilised for concocting the alleged agreement dated 14.05.1993 and therefore, the plaintiffs are not entitled to get the reliefs sought for in the plaint.
10. As stated earlier, the trial Court has decreed the suit as prayed for. But the first appellate Court has dismissed the suit mainly on the ground that the plaintiffs have not established their claim over the suit property and no right has been created in their favour by virtue of the agreement dated 14.05.1993.
11. The learned counsel appearing for the appellants/plaintiffs has strenuously contended that the house of the defendant as well as the house of the plaintiffs are situate immediately on the western side of the suit property and the suit property is being used as pathway so as to reach main road which situates on the northern side and in between the main road and the suit property a pathway is in existence in poramboke land, comprised Survey No.203 and except the suit property the plaintiffs are not having any other way so as to reach the main road which situates on the northern side and both the plaintiffs and defendant have entered into an agreement on 14.05.1993, whereby the suit property has been treated as common pathway and since the defendant has obstructed peaceful possession and enjoyment of the plaintiffs by way of putting pial and also by way of planting coconut as well as plantine saplings, the present suit has been instituted for the reliefs of declaration, perpetual and mandatory injunctions. The trial Court after analysing the evidence available on record has rightly decreed the suit. But the first appellate Court has erroneously dismissed the suit and therefore, the Judgment and decree passed by the first appellate Court are liable to be interfered with.
12. In order to repel the argument advanced by the learned counsel appearing for the appellants/plaintiffs, the learned counsel appearing for the respondent/defendant has also equally contended that the suit property is the absolute property of the defendant and at any point of time, pathway is not in existence in the suit property and the plaintiffs have claimed easement of necessity in the plaint. But to prove the same, necessary pleadings are not available in the plaint and the trial Court without considering the correct legal position, has erroneously decreed the suit. But the first appellate Court after reappraising the evidence properly, has rightly dismissed the suit and therefore, the Judgment and decree passed by the first appellate court are perfectly correct and the same do no call for any interference.
13. Basing upon the divergent submissions made by either counsel, the Court has to look into as to whether the appellants/plaintiffs are entitled to get the reliefs sought for in the plaint. In the plaint, three kinds of reliefs have been sought for.
14. The first relief is to declare that the plaintiffs are having easementary right. The second relief is to restrain the defendant by means of perpetual injunction from using common pathway by the plaintiffs and the third relief is to pass mandatory injunction against the defendant so as to direct her to remove the obstructions put up by her.
15. At this juncture it would be more useful to look into the juxtaposition of the suit property and its adjoining properties with reference to Ex.A1, the plaint plan. In Ex.A1 it has been clearly mentioned that the houses of the defendant and plaintiffs are situate immediately on the western side of the suit property. On the northern side of the suit property a pathway is in existence in poramboke land which is comprised in Survey No.203 and the same connects the main road which situates on further northern side.
16. In the plaint at para-8, it has been specifically pleaded that the plaintiffs are having easement of necessity over the suit property. But in the reliefs, initially claimed that the plaintiffs are having easmentary right over the suit property and subsequently stated that the defendant should be restrained by means of perpetual injunction from using the suit common pathway by the plaintiffs. Therefore, it is quite clear that two kinds of characters have been given by the plaintiffs to the suit property. At one point of time it is stated in the plaint that the suit property is the absolute property of the defendant and another point of time, it is pleaded in the plaint that the suit property is a common pathway. Therefore, the stand taken by the plaintiffs with regard to character of suit property are mutually contradictory and also incongruous. Since the plaintiffs have taken two different kinds of stands with regard to character of the suit property, that itself has debilitated their entire case.
17. Even assuming without conceding that the plaintiffs are having easement of necessity over the suit property, the Court has to look into the correct legal position involved in the present case.
18. Section 13 of Indian Easements Act, 1882 reads as follows:
13. Easements of necessity and quasi-easements.-Where one person transfers or bequeaths immovable property to another,-
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement Where a partition is made of the joint property of several persons,-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
19. The sum and substance of the provision of the said section is that if a property is divided into several parts and one part cannot be enjoyed by using other parts, under such circumstances easement of necessity arises.
20. In the instant case, as stated earlier, at para-8 of the plaint, it has been simply stated that the plaintiffs are having easement of necessity over the suit property. But in the first relief, they simply claimed easementary right without specifying its kind. Therefore, it is quite clear that the Court has to further look into as to whether necessary pleadings with regard to easement of necessity are present in the plaint.
21. The learned counsel appearing for the respondent/defendant has befittingly drawn the attention of the Court to the decision reported in (2009) 4 MLJ 900 (SC) (Bechhaj Nahar Vs. Nilima Mandal and others), wherein the Honourable Apex Court has held that "for claiming and easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used".
22. Further it has been held that "the object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the Court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief".
23. From the close reading of the decision rendered by the Honourable Apex Court, it is easily discernible that for claiming an easement of necessity, plaintiff has to plead that his dominant tenement and servient tenement of defendant have originally constituted a single tenement and subsequently divided into various parts and without servient tenement his dominant tenement cannot be enjoyed. Further it is made clear that without proper pleading, the Court cannot grant the reliefs sought for in the plaint on the basis of the evidence adduced on the side of plaintiff. Further it is made clear that no amount of evidence can be looked into upon a plea which has never been put forward in the pleadings.
24. On the side of the plaintiffs one Kalimuthu has been examined as P.W.2. He has stated in his evidence that the property of the plaintiffs and defendant are originally belonged to his father viz., Palani Servai and he settled the same in favour Meyyathal and Angammal and subsequently the plaintiffs and defendant have purchased their properties. Likewise, DWs.2 and 3 have also stated in their evidence that the properties of the plaintiffs and defendant are originally belonged to the said Palani Servai. Therefore, it is quite clear that the properties of the plaintiffs and defendant are originally belonged to Palani Servai and he settled the same in favour of Meyyathal and Angammal and subsequently third persons including the plaintiffs and defendant have purchased the same. But in the plaint, it has not been specifically averred that the properties of the plaintiffs and defendant are originally belonged to the said Palani Servai and he settled the same in favour of Meyyathal and Angammal and subsequently the plaintiffs and defendant have purchased their respective property. Under the said circumstances the plaintiffs are having easement of necessity over the suit property. To put it in short, the plaint is totally bereft of necessary particulars for claiming easement of necessity.
25. In the decision referred to supra, the Honourable Supreme Court has clearly pointed out to the extent that for claiming an easement of necessity, plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and ownership thereof vested in the same person and that there has been a severance of such ownership and that without easementary right claimed, dominant tenement cannot be used.
26. It has already been pointed out that the plaint filed on the side of the plaintiffs is totally bereft of particulars with regard to claim of easement of necessity. Since necessary particulars for claiming easement of necessity have not been pleaded in the plaint, it is needless to say that the plaintiffs can easily be non suited.
27. The learned counsel appearing for the appellants/plaintiffs has relied upon the decision reported in 2009-2-L.W.752 (C.Pazhamalai Pillai(died) and others Vs. Chinnadurai and another), wherein at paragraph 25, this court has observed that "it needs to be stated when the first defendant has come forward with a defence that there was no passage, to rebut the same, plaintiffs have taken out Advocate-commissioner. The Advocate-commissioner in his report has noted street running north to south connecting the main road. Advocate- commissioner has observed that there are houses on either side of the suit path and owners of the houses are using the suit path and the suit pathway is the only pathway for the residents. When the Advocate-commissioner has categorically stated that the suit pathway is the only pathway for the residents, lower appellate Court erred in ignoring the material evidence.
28. In the present case, in the lower Court an Advocate Commissioner has been appointed and he inspected the suit property and its adjoining properties and subsequently filed his reports and plans which have been marked as Exs.C1 to C4. In Exs.C1 and C2 it has been mentioned that the suit pathway is in existence. In Exs.C3 and C4 it has been mentioned that on the side of the defendant an alternative pathway for the use of the plaintiffs has been pointed out and the same runs through ridges of fields.
29. From the cumulative reading of Exs.C1 to C4, the Court can easily come to a conclusion that the suit pathway is in existence and the same is being used so as to reach the pathway which situates in poramboke land (Survey No.203) which connects the main road which situates on further north. But as animadverted to earlier, the plaintiffs have failed to plead and prove easement of necessity over the suit property as per section 13 of the Indian Easements Act, 1882. Therefore, it is quite clear that the decision rendered by this court reported in 2009-2-L.W.752 cannot be attuned to the present case.
30. Before, parting with this second appeal, it has become shunless to point out the following lapses on the side of the plaintiffs.
(a) The plaintiff have taken two different stands with regard to suit property viz., in the first instance, they stated in the plaint that the suit property is the absolute property of the defendant and in the prayer column they stated that the same is a common pathway
(b) The plaintiffs have failed to aver that their property as well as the property of the defendant are originally belonged to a common ancestor and subsequently divided into several segments. Under the said circumstances they are having easement of necessity
(c) The plaintiffs have failed to plead and prove easement of necessity as per section 13 of Indian Easements Act, 1882.
31. By eschewing the infirmities found on the side of the plaintiffs, the Court cannot grant the reliefs sought for in the plaint. Therefore, viewing from any angle, the argument advanced by the learned counsel appearing for the appellants/plaintiffs does not hold good and whereas the argument advanced by the learned counsel appearing for the respondent/defendant is really having subsisting force and further, all the substantial questions of law formulated in the present second appeal are not factually and legally sustainable and altogether the present second appeal deserves to be dismissed.
32. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost. The Judgment and decree passed in Appeal Suit No.230 of 2004 by the first appellate Court are confirmed.
mj To
1.The Additional Sub Court, Dindigul
2.The First Additional District Munsif Court, Dindigul.