AI Structured Summary
Not yet generated for this judgment
Judgment
K. Sampath, J.—The plaintiff is the appellant in this Second Appeal. He filed O.S. No. 195 of 1977 before the District Munsif,
Tiruchirappalli for declaration of his exclusive title to the suit property subject to the only condition of providing pathway to the defendants as a
consequential relief of permanent injunction restraining the defendants, their men or agents and servants from preventing the enjoyment of such right
by the plaintiff in any manner whatsoever and for mandatory injunction by removing the water pipe connection taken beneath the suit property by
defendants and if not done so through an officer of court at the cost of the defendants.
The case of the plaintiff was as follows: The suit property is a pathway which was subject matter of a partition suit in O.S. No. 704 of 1969 on
the file of Sub-Court, Tiruchy. There was a compromise between the parties and in that compromise this pathway was provide as ingress and
egress to the appellant''s brother and his tenants to go to the properties allotted to the brother. The compromise contemplated that the appellant''s
brother and his tenants should not have any right other than the right of pathway. The appellant''s brother sold the property to one Viswalingam
who in turn sold the same to the first defendant. On 22.12.1976 in the absence of the appellant, the first defendant by force had taken the
Municipal water pipe connection beneath the suit property and while so doing he damaged the drainage system of the appellant. On the same day,
there was objection and protest made by the appellant''s wife and other relations. There was violation of the rights of the plaintiff and an act of
interference with exclusive right in the suit lane. Instead of removing the pipe line, the first defendant was attempting to take drainage pipe also
under the suit property and overhead electric wiring over the suit lane which the first defendant had no right to do. Such an act was unlawful.
Pending the suit, the first defendant died and defendants 2 to 6, the respondents herein, were brought on record as the appellant''s legal
representatives.
The defence was as follows: The suit pathway was a common lane of the appellant and the respondent''s ancestors. It had been used as such.
The allegation that during the absence of the plaintiff on 22.12.1976, the first defendant by force took the Municipal water pipe connection beneath
the suit property and damaged the drainage system of the appellant. The first defendant was entitled to take Municipal water pipe line. This was
done only in the presence of the appellant who did not raise any objection at all. Even assuming that the appellant was the owner of the lane, no
prejudice or hardship would be caused to him in the first defendant taking the pipe line underneath the lane. There was also no damage caused by
the first defendant by taking the drainage. The over-head electric line was taken at a height of more than 30 feet. No hardship or prejudice was
caused to the appellant. The appellant had also acquiesced.
The trial Court found that the plaintiff was the exclusive owner of the suit property subject to the right of providing pathway to the first
defendant. It also found that the appellant had acquiesced and he was not entitled to the removal of the water tap connection by way of mandatory
injunction. So holding, by his judgment and decree dated 26.9.1981, the learned II Additional District Munsif granted a decree in favour of the
appellant for declaration of exclusive title to the suit property subject to the right of pathway to the defendants. In other respects, he dismissed the
suit. The appellant filed A.S. No. 94 of 1982 before the Principal Subordinate Judge''s Court, Tiruchirappalli. By her judgment and decree dated
31.1.1984, the learned Principal Subordinate Judge, Tiruchirappali confirmed the decision of the trial Court and dismissed the appeal.
Aggrieved the present Second Appeal has been filed.
At the time of admission the following substantial question of law was raised for consideration in the Second Appeal.
Whether or not the lower appellate court committed an illegality in applying the doctrine of acquiescence ignoring the provision of Section 26 of
the Indian Easements Act?
Mr. I. Mahaboob Sheriff, the learned counsel for the appellant submitted that the courts below committed an illegality in applying the doctrine of
acquiescence ignoring the provisions of Section 28 of the Indian Easements Act. The learned counsel also submitted that the courts below clearly
erred in overlooking the legal principles that the respondents being the owners of a dominant tenement in respect of the pathway only, had no right
whatsoever to throw additional burden on the servant tenement without prescribing a right to lay the pipe line or to take the over-head electric
wiring as against the appellant. It is also the submission of the learned counsel that the courts below had clearly overlooked the well-settled
principles of law that the owner of the servant tenement was entitled to obstruct the dominant tenement from illegally attempting to claim new rights
until they ripened into an easement as envisaged under the provisions of the Indian Easements Act.
Section 28 of the Indian Easements Act runs as follows:
With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect: An easement of necessity is
co-extensive with the necessity as it existed when the easement was imposed. The extent of any other easement and the mode of its enjoyment
must be fixed with reference to the probable intention of the parties, and the purpose for which the rights were imposed or acquired. In the
absence of evidence as to such intention and purpose (a) A right of way of any one kind does not include a right of way of any other kind.
(The rest of the Section is omitted)
No doubt, the Section does say that a right of way of any one kind does not include a right of way of any other kind and would mean that a
person entitled to a dominant right to use a pathway for ingress and egress cannot claim any other mode for using the pathway. If we go by the
Section, it is possible to hold that the defendants in the instant case would not be entitled to take the water line, drainage line and over-head electric
line over the suit pathway. But then two things have to be noticed.
(i) The defendants admittedly reside behind the house of the plaintiff. Water, drainage and electricity are basic necessities of life. If the defendants
had not been permitted to take the lines in the manner they had done, it would have been a real problem for them. It could not have been possible
for them to live in the property.
(ii) Apart from this, there is enough material on record to show that the plaintiff had acquiesced in the defendants'' using the pathway for taking
underground drainage and water connections and also over-head electric line. The plaintiff-appellant had not taken steps to object to the use by
the defendants of the suit lane in the manner they had done. Viewed from this angle, it is not difficult to agree with the decision of the courts below.
While confirming the judgments and decrees of the courts below by answering the substantial question of law against the appellant and dismissing
the Second Appeal, it is further made clear that the declaration granted to the appellant, is adequate protection against future abuse by the
defendants or their successors in interest of the right of way granted to them. It is made clear that in future if the defendants want to exercise any
new right in respect of the suit pathway, the same cannot be done without express consent in writing from the plaintiff or his successors in interest.
With these observations, the Second Appeal is dismissed. However, there will be no order as to costs.