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Judgment
G. Rajasuria, J.—This second appeal is focussed as against the judgment and decree dated 30.07.1999 passed in A.S. No. 38 of 1999 on
the file of the Additional District Judge, Nagercoil, confirming the judgment and decree dated 29.07.1997 passed in O.S. No. 52 of 1996 on the
file of the Additional Sub Judge, Nagercoil.
A resume of facts absolutely necessary and germane for the disposal of this second appeal would run thus:
Unassailably and indubitably, admittedly and indisputably, the facts run thus. The plaintiff and the defendants are brothers. Originally, their
deceased father Dr.Mathias was the owner of the A, B, C and D Scheduled properties as described in the plaint totally measuring an extent of 5
acres and 77 cents with buildings thereon. Dr. Mathias, during his life time donated the properties as per the donation deed dated 01.11.1962.
Subsequently, the plaintiff and the defendants herein got that property partitioned among themselves vide partition deed dated 24.01.1985 under
which the plaintiff and the defendants 1 and 2 were allotted A, B and C Scheduled properties respectively. D Scheduled property wherein well
and the overhead tank are situated, was left for common usage of those sharers. D Scheduled property is bounded partly by B Scheduled
property and partly by C Scheduled property.
The apple of discard among the parties is relating to the right of ingress and egress to the D Scheduled property as in the partition deed there
was no reference.
The plaintiff is the owner of the A Scheduled property and for him, to have ingress and egress to D Scheduled property which is bounded by B
and C Scheduled properties, the respective owners of B and C Scheduled properties raised objection. Thereupon only, O.S. No. 52 of 1996
emerged at the instance of the plaintiff seeking the following reliefs:
A) A declaration that the plaintiff has a right of easement to provide electric supply directly from his meter installed in his portion to the motor
installed in D Scheduled through under ground cables in and across B Scheduled and to enter B Scheduled to effect repairs in pipe line and in the
cables whenever the same occurs;
B) A declaration that the plaintiff has a right of way by easement through C Scheduled to reach the common well i.e., D Scheduled from K.P.
Road on the south and to come again to the road;
C) A permanent injunction against the defendants preventing them from obstructing the plaintiff and his men from entering into B and C Scheduled
properties to repair the motor, pipe line, and to lay cables when ever occasion arises;
D) Cost of the suit be decreed to be realised from the defendants.
Per contra, the defendants resisted the suit on the ground that the plaintiff had no right as claimed in the plaint and they prayed for the dismissal
of the suit in toto.
During trial, before the trial Court, on the side of the plaintiff, P.W. 1 was examined and Exs. A.1 to A.6 were marked and on the side of the
defendants, D.W.1 was examined and Exs.B.1 was marked.
Ultimately, the trial Court decreed the suit as prayed in the plaint.
Being aggrieved by and dissatisfied with, one and the same judgment and decree of the trial Court, the first defendant preferred A.S. No. 37 of
1999 and the second defendant preferred A.S. No. 38 of 1999. A.S. No. 38 of 1999 filed by the second defendant was dismissed in toto,
whereas A.S. No. 37 of 1999 was allowed in part suggesting modification relating to laying of electric cable in B Scheduled property by the
plaintiff.
The second defendant being aggrieved by the dismissal of A.S. No. 38 of 1999, filed this second appeal on the grounds inter alia thus:
The plaintiff is having no right of ingress and egress through C Scheduled property as C Scheduled property is away from A Scheduled property,
but B Scheduled property is adjacent to A Scheduled property. The easement by necessity could be exercised only on adjacent property and not
on C Scheduled property so as to have ingress and egress to D Scheduled property.
At the time of admitting this second appeal, my learned Predecessor framed the following substantial questions of law:
1) Are the Courts below correct in decreeing the suit with regard to ''C'' Scheduled when the easement claim should be apparent and continuous
and necessary for enjoying the share of dominant tenament?
2) When a dominant tenament can have only one servient tenament, are the Courts below correct in decreeing the suit with regard to ''C''
Scheduled also when ''B'' Scheduled is the adjacent property for which a decree is already granted?
Heard both sides in entirety.
Trite, the proposition of law is, that when three brothers who are parties to this suit were enjoying the A, B, C & D Scheduled properties
jointly, including the overhead tank and the electricity supply to the motors, the concept of easement by necessity did not arise at all. However,
after partition as set out supra among them vide Ex.A.1, there arose the necessity to invoke the concept of easement by necessity. In the partition
deed, the following versions inter alia are found set out:
...The D Scheduled property in 4 cents of land and the well, the electric motor pumpset and the over head tank situate about the middle between
the A and B Scheduled properties....
The property in D Scheduled shall belong jointly and absolutely to Parties Nos.1 to 3 herein and they shall own, possess and enjoy the same with
joint right and interest over the same.
However, for reasons best known to themselves, they have not chosen to specifically mention therein as to how ingress and egress to the D
Scheduled property can be had by the plaintiff who was allotted the A Scheduled property.
Strangely enough the plaintiff himself has chosen a peculiar logic by claiming right to take electric cable for his motor pumpset in D Scheduled
property through B Scheduled property, but he would claim right of ingress and egress to the same D Scheduled property through C Scheduled
property.
The learned Counsel for the plaintiff unconvincingly in the absence of any averment in the plaint would try to justify the plaintiff''s prayer by
stating that while the property was under common enjoyment, there was a pathway in the C Scheduled area and hence, the plaintiff has chosen to
pray that he should be given the right of ingress and egress through C Scheduled property.
I am of the considered opinion that when the property was under common enjoyment, the parties were at liberty to move about wherever they
like in the entire extent. K.P. Road is admittedly situated to the south of the three shares namely A, B and C Scheduled properties. After partition,
the factual position is that the B Scheduled property is adjacent to A Scheduled property and simply because, before partition, there was some
trodden path was there and that subsequently it is found included in the C Scheduled property, the owner of the A Scheduled property cannot
claim easementary right through C Scheduled property. If the owner of the A Scheduled property is going to insist for his right of ingress and
egress over such ''C'' Scheduled property, then there would be no rhyme or reason on the part of the plaintiff to claim right to have electric cable
and pipe line to be laid through the B Scheduled property from his A Scheduled property. Once, the first appellate Court in A.S. No. 37 of 1999
filed by the first defendant (B Scheduled sharer), held that the plaintiff being the owner of the A Scheduled property could take his cable through
the marked portion in B Scheduled property, there is no rhyme or reason on the part of the appellate Court in holding that the right of ingress and
egress to the D Scheduled property could only be through C Scheduled property.
To the risk of repetition without being tautologous, I would state that the plaintiff being the owner of the A Scheduled property, can rightly
enter into B Scheduled property from K.P.Road and reach the D Scheduled property. The right of easement by necessity which subsequently
arose, cannot be understood as inferred by the appellate Court erroneously that the B Scheduled property should not be burdened by also
ordering the right of ingress and egress of the plaintiff over B Scheduled property over and above what it has been already burdened by making the
plaintiff''s cable to be taken under that land.
If the easement by necessity is such that B Scheduled property should be used for ingress and egress as it happens to be the adjacent property
to A Scheduled property, then the question of burdening B Scheduled property and leaving the C Scheduled property does not arise at all. Had
really the parties intended that C Scheduled property should be used for ingress and egress by the plaintiff, then that should have been found
mentioned in Ex.A.1, but that was not done so.
The Court cannot read anything into the partition deed, when the parties themselves had never intended to incorporate in it. The concept of
implied grant of easement cannot be ushered in relating to C Scheduled property.
Ex. B. 1, the plan drawn bearing the measurements would clearly show that the D Scheduled property is bounded mainly by B Scheduled
property and only part of the D Scheduled property measuring north to south 14.85 mts and 1 mtr from east to west on the northern side and 1.70
mts east to west on the southern side, is bounded by C Scheduled property whereas the remaining part of D Scheduled portion measuring 15.15
mts from south to north and 9.80 mts from east to west on the northern side and 8.45 mts from east to west on the southern side is bounded by B
Scheduled property. In other words, if a straight line is drawn stretching out the eastern edge of B Scheduled property over D Scheduled property
as already described out supra, the major portion of D Scheduled property is found bounded by B Scheduled property and the remaining small
extent of D portion is bounded by C Scheduled property.
Hence, in such a case, it is not known as to how both the Courts below could arrive at such a illogical conclusion agreeing with the plaintiff that
the plaintiff is having the right of easement of ingress and egress over C Scheduled property leaving the B Scheduled property. The plaintiff may
have likes and dislikes, but his prayer should have the legal basis. There is no law which would buttress and fortify the plaintiff''s claim of easement
right over C Scheduled property. As has been already discussed supra, the question of implied grant cannot be pressed into service for the reasons
that the parties never intended that C Scheduled property should be made available for ingress and egress to the plaintiff, despite C Scheduled
property being not nearer to A Scheduled property. As such, the principle of easement by necessity is ushered in and accordingly, if viewed, the
plaintiff who is the owner of A Scheduled property can step out of his property and enter K.P. Road which is situated to the south of all the three
sharers viz., A, B and C Scheduled properties and enter B Scheduled property which is situated adjacent to A Scheduled property and the plaintiff
could go to the D Scheduled property as the major portion of it as highlighted supra is surrounded by B Scheduled property only.
The trial Court and the appellate Court got over-obsessed with the thought of over burdening of B Scheduled property. One sharer for the
purpose of enjoyment of his right is deemed to be having the right of easement by necessity over his adjacent property, by the shortest route
namely the B Scheduled property.
I am at a loss to understand as to why simply because cable wire of the plaintiff was allowed to be taken under the B Scheduled property to D
Scheduled property for the plaintiff''s motor, there should not be any further direction that the plaintiff should have ingress and egress over B
Scheduled property. The assumption of the Courts below based on over burdening B Scheduled property, is a misconceived one having no legal
basis in the facts and circumstances of this case.
The trial Court in paragraph No. 14 was very much carried away by the contention of the plaintiff and the first defendant in their evidence that
there was a pathway before partition from K.P. Road to the well and the motor and subsequent to partition, that such road fell into the share of C
Scheduled property and that it should only be used by the plaintiff. As has been already discussed supra, if such a well-trodden and well-defined
pathway or road was in existence, then it is not known as to what prevented the parties to specify it in the partition deed for being used as common
passage.
It is of paramount importance to highlight here that in the plaint, there is no whisper about such alleged existence of road or well-trodden
pathway in the C Scheduled property before partition itself. In such a case, it is not known as to how both the Courts below could simply hold as
though there was road in C Scheduled property even before partition and on that basis, they decided the issue.
It is a trite proposition of law that any amount of evidence without pleadings should be eschewed.
The first appellate Court further misdirected itself by applying the ""over burdening"" theory. Hence, legally and factually, both the Courts below
proceeded on the wrong assumption and presumptions without adhering to the law of pleadings and law of easement.
Hence, the circumstances set out supra warrants the interference of this Court and accordingly, this Second Appeal is allowed and the findings
of both the Courts below which are based on improper appreciation of evidence and wrong application of law, have to be set aside. Even though
the plaintiff has not prayed any right of ingress and egress over B Scheduled property, this Court could mould the relief and modify it to the effect
that the right of ingress and egress to the plaintiff can only be over B Scheduled property and not on C Scheduled property. However, in the facts
and circumstances of this case, there is no order as to costs. C.M.P. No. 4046 of 2000 is closed.