The unsuccessful defendant, who suffered a decree in favour of the plaintiff, is the appellant herein and the appeal has been filed by raising the following substantial questions of law:
(i)Whether the respondent proved the easementary right for over 22 years usage of the battai. In the absence of such a usage whether the lower appellate Court was right in granting such a relief?
(ii)Whether the framing of question of law by the lower appellate Court is right, particularly when the finding of the trial Court is that there is alternative pathway to the respondent?
(iii)Whether the lower appellate Court is right in holding that as per revenue records there is no battai in S.No.390/2A and 390/2B?
(iv)Whether the lower appellate Court is right in relying on Ex.A4 unregistered document?
(v)Whether the lower appellate Court is right in coming to the conclusion that the respondent pleaded for easement of necessity as per Section 13 of the Easements Act?
(vi)Whether the lower appellate Court was right in directing the appellant to form battai within three months to enable the respondent to use battai is right?
2.Both the parties viz., the respondent/plaintiff and the defendant/appellant have purchased their respective properties from the same vendor one Mr.R.Dhanasekaran, who inturn acquired the same by way of partition deed executed in the year 1984-Ex.A1. The vendor of the parties was allotted D schedule properties. He then sold the entire lands equally to the plaintiff and the defendant. In the sale deeds of the parties, there is no mention about the battai. However, Ex.A1 makes a specific reference about the common enjoyment of the battai. The suit has been laid by the plaintiff on the premise that the defendant/appellant is obstructing the enjoyment of the battai to reach his land and therefore, he is entitled to the relief of permanent injunction as sought for. The learned Advocate Commissioner issued notice to the parties and found the existence of the battai. He has also stated that there is no other way to reach the land of the respondent/plaintiff except going through the same. The FMB sketch marked as Ex.B1 also proves the availability of the pathway with the measurement tallying with the plaint averments and the averments in Ex.A1. Ex.A4 which is the consent letter given by the vendor of the parties also speaks about the existence and usage of battai by the respondent/plaintiff. The learned Advocate Commissioner mentioned the measurement in his report. The trial Court dismissed the suit though no objection has been raised on the premise that there is no existence of battai. The report of the Advocate Commissioner was also rejected being a mere piece of evidence.
3.The lower appellate Court reversed the judgment and decree of the trial Court holding that in view of Ex.A1 coupled with Ex.A4, the respondent/plaintiff is entitled for the decree as prayed for. The suit is not for declaration of title but declaration of easementary right. Further more, the admission of D.W.1 about the existence of battai and the averments made in Ex.A1 with respect to the common enjoyment were also taken into consideration. Challenging the judgment and decree of the trial Court, the present appeal has been filed.
4.Mr.P.R.Balasubramanian, learned counsel appearing for the appellant submits that there is no specific measurement of length and breadth. There is also no recital in the sale deed of the respective parties about the existence of battai. Thus the judgment of the Courts below will have to be reversed.
5.Mr.S.V.Jayaraman, learned senior counsel appearing for the respondent submits that the judgment has been rendered based on the evidence of P.Ws.1 and 2 coupled with Exs.A1 and A4 as well as the report of the learned Advocate Commissioner. Hence there is no necessity to interfere with the well merited decision rendered by the Courts below.
6.The respondent/plaintiff claimed the following reliefs in the suit:
(i)for declaration of easementary right over the suit A Schedule battai property;
(ii)to declare that A schedule battai as a road;
(iii)for mandatory injunction directing the defendant to restore the suit B Schedule battai to its original position;
(iv)for costs of the suit and
(v)grant such other suitable relief.
7.The learned Advocate Commissioner found that the measurement and description given in the plaint tallies with the report given. There is no challenge to the report of the learned Advocate Commissioner though it is a piece of evidence to be appreciated by the Court. Admittedly, Ex.A1 speaks about the existence of usage of battai (pathway). What Ex.A1 conveys has also been accepted by D.W.1. The lower appellate Ccourt found that Ex.A4 has also been proved. The respondent/plaintiff has sought for comprehensive relief. In that, a mandatory injunction has also been sought for restoration of B Schedule battai. These factors have been rightly taken into consideration by the lower appellate Court while decreeing the suit as prayed for. The learned Advocate Commissioner incidentally found that necessity of easementary lies in favour of the respondent/plaintiff.
8.In such view of the matter, this Court does not find any substantial question of law involved, warranting interference as the admission made by a party is the relevant fact, which has been rightly taken note of apart from the existence of the said admission to Ex.A1, being a document relied upon by both the parties. Accordingly, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
10.01.2017 Index:Yes/No mmi To
1.The Additional District and Sessions Judge, Kancheepuram at Chengalpattu.