Vedavalli Ammal Vs. Kathayi Ammal - Court Judgment

SooperKanoon Citationsooperkanoon.com/832432
SubjectProperty;Civil
CourtChennai High Court
Decided OnAug-30-2002
Case NumberSecond Appeal No. 1288 of 1992
JudgeA.K. Rajan, J.
Reported in(2002)3MLJ804
AppellantVedavalli Ammal
RespondentKathayi Ammal
Appellant AdvocateR. Thirugnanam, Adv.
Respondent AdvocateK. Yamunan, Adv.
DispositionAppeal allowed
Excerpt:
civil - easement - grant of easementary right challenged - plaintiff pleased absolute ownership with regard to suit property - relief sought on said ground - evidence of plaintiff was only to claim ownership and not easement - said plaintiff cannot said to have sufficient animus to claim easement right - held, grant of easement right to plaintiff who claimed ownership set aside. - a.k. rajan, j.1. the defendant who lost before the lower appellate court has filed the present second appeal.2. the plaintiff filed the suit for declaration of title and possession over a land. the case of the plaintiff is that she purchased the property 72 feet on the east and 68 feet width on the west. beyond that there is a lane of 3 feet on the northern side and one foot on the south adjoining the property. the plaintiff also claimed right of easement namely right to take water and right to drain water through the lane . the case of the plaintiff is that she was also taking water and draining sewerage through that lane. therefore, the suit for declaration and title over the suit lane. the trial court dismissed the suit on the ground that the plaintiff has not proved his case. on appeal, the appellate court also dismissed the claim for title over the property but held that the petitioner is entitled to easementary right over the same. against that judgement and decree of the appellate court, the second appeal has been filed. 3. the second appeal was admitted on the following substantial questions of law:1.whether the lower appellate court has committed an error of law in holding that the respondentis entitled for continuous and customary usageof the suit property as easementary right in theabsence of pleadings and evidence? 2.whether the lower appellate court has committed an error of law in not dismissing the appeal having found that the respondent is not the absoluteowner of the suit property? 4. learned counsel for the appellant submitted that the case of the plaintiff was that he was absolute owner of the property. once he failed to prove that fact, the right of easement cannot be granted. in as much as the right of easement can be claimed only in the property of another person. it is absolutely necessary that the plaintiff must first accept the ownership of the property in another person. only thereafter, he can claim easementary right. but, in this case such a plea has not been made at all. therefore the plea of ownership as well as easement cannot go together as they are mutually exclusive. in support of the above contention , learned counsel for the appellant relied on the judgement of this court in p.v.krishnaier vs.perumal nadar 85 lw919 wherein this court has held that the question of animus plays an important part in the acquisition of easement. if, even at the time of the trial, the plaintiff was proceeding on the basis that he is the owner of a lane he cannot be said to have had the requisite animus for enjoying the easementary right, as he had always been conscious only of his ownership of the land. he also placed reliance on another decision of this court in e.elumalaichetty vs.naina mudali wherein this court has held that claim of title and easementary right are distinct and contradictory and that when the plaintiff failing to establish claim of title to strip of land specifically pleaded by him he cannot turn round and ask for reliefs on basis of easement. therefore, the counsel submitted that the case of the plaintiff right from the beginning till the end of the trial was only that he was the absolute owner of the property. nowhere she has pleaded that she has easementary right over the property. therefore, the first appellate court is not correct in granting the relief of easement and hence the judgement has to be set aside.5. learned counsel for the respondent submitted that it is not correct to say that the right of ownership and easementary right are mutually exclusive or contradictory to each other. in the same case, the plaintiff can ask both for declaration of title or in the alternative for easementary right. such an action is not illegal. in support of the said contention the counsel relied on the judgment of this court in palaniswami naicker vs.chinnaswami naicker 1968 mlj 502 wherein this court has held as follows:'the question of animus, no doubt, is always one of fact. even from the sketches filed along with the plaint and shown to me at the hearing, it is clear that the suit pathway is not only apparent, but continuous. if, thus the suit pathway is apparent and continuous, there is little difficulty in holding that the easement in this case is one which has undoubtedly been secured by prescription and enjoyed as such, if not as an easement of necessity.......................................................a full bench of the calcutta high court, however, in narendranath barai vs.aboy charan chatopadhyaya took a contrary view. their lordships are specifically of the view that a suit for declaration that a ditch belonged to the plaintiff or in the alternative they have acquired a right of easement therein for the passage of their boats is not liable to be dismissed because the plaintiffs claimed in the alternative over the same plot of ground rights (1) of ownership, (2) of easement. respectrfully accepting the ratio of the full bench of the calcutta high court, i hold that such an alternative plea as above, even if it could be presumed to have been pleaded in the instant case by the plaintiff, is permissible provided the plaintiff presses only one of them at the appropriate time.'6. therefore, relying upon the above judgements the learned counsel for the respondent submitted that even though there is plea of ownership for the property, the court can grant the alternative relief viz., easementary right. therefore he argued that the first appellate court was right in granting such a decree and hence it is legal and cannot be interfered with. learned counsel for the respondent also submitted that as per order 41 rule 24 where the evidence on the record is sufficient to enable the appellate court to pronounce judgement the appellate court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgement of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds. relying upon this rule learned counsel for the respondent submitted that the appellate court was correct as there was ample evidence to enable the appellate court to pronounce judgement on the issue raised. therefore, even in the absence of pleading if there is sufficient evidence, the court can grant the relief. 7. the argument of the learned counsel for the respondent is not acceptable on the facts of this case; as per the plaint, the prayer of the plaintiff is as follows:'1)declaring that the plaintiff is the absolute ownerof the suit property; 2)directing the defendant to vacate and surrender vacant possession of the suit property to plaintiff after removing all the constructions and obstructionsput up thereon; 3)directing the defendant to pay the plaintiff the costof this suit; and 4)to grant such further or other reliefs that may bedeemed fit and proper in the circumstances of this case to meet the ends of justice.' that is the plaintiff filed the suit only for declaration of title over the property. there is no alternative plea at all. before this court, pw1 has deposed as follows:jhth re;j bjz;tz;il (thry;g[uk;) 1 mo mfykhft[k; tlg[wk; (bfhy;iyapy;) 3 mo mfykhft[k; cs;sj/ ehd; th';fk;nghj mj jpwe;nj ,ue;jj/ ehd;jhd; mjpy; g[h';fpf; bfhz;l ,ue;njd;/ vd; tpl fy; nghl;l xl;l tpl/ mjpy; xh; cs; kw;wk; cz;l/ mjpy; tpgk; jz;zph; rpkpl;oahy; fl;lg;gl;l rhf;fil i& jhth re;j k:yk; ngha; bfhz;l ,ue;jj/ mij ,g;nghj gpujpthjp milj;j itj;js;shh;/ mjdhy; v';fs; tpl;oy; jz;zph; btspna nghf thpapd;wp nj';fptpl;lj/further in the cross examination she has stated as follows:'re;j vdf;f brhe;jk; vd;wk; mjpy; jz;zph; xl ghf;fpaij ,uf;f vd;wk; nfl;fpnwd;/' therefore, the definite plea of the plaintiff is that she is the owner of the entire lane. she also deposed that by virtue of the ownership over the lane she claims the right to take water through that lane. therefore, the evidence of the plaintiff is only to claim ownership of the lane and not mere easement. in the judgment relied on by the respondent it is clearly stated that such an alternative plea, even if it could be presumed to have been pleaded in the instant case by the plaintiff, is permissible provided the plaintiff presses only one of them at the appropriate time.. therefore, even as per the decision relied upon by the learned counsel for the respondent, such alternative plea can be entertained only if the plaintiff has elected one of them at the appropriate time during trial. but, as seen already, the main contention of the plaintiff is only right of ownership even during trial. the right to take water and sewerage is claimed only on the basis of right of ownership over the property. assuming there is an alternate plea for easement the plaintiff has not chosen the plea of easement alone giving up the right of ownership. hence the decision of this court referred to above and relied upon by the learned counsel for the appellant herein does not come to his help.8. in the decision reported in 85 l w 919 it has been held as follows:'if, even at the time of the trial, the plaintiffwas proceeding on the basis that he is the owner of a land he cannot be said to have had the requisite animus of enjoying the easement in thedefendants as he had always been conscious onlyof his ownership of the land.'the above decision squarely applies to the facts of the present case. from the evidence as discussed above , it is clear that the respondent never had animus to claim easement over the land. but she was always conscious only of her claim of ownership over the land. therefore, the lower appellate court is not correct in awarding the relief of easement and hence the judgement of the lower appellate court is liable to be set aside. hence it is set aside. the substantial questions of law are answered in favour of the appellant.
Judgment:

A.K. Rajan, J.

1. The defendant who lost before the lower appellate court has filed the present second appeal.

2. The plaintiff filed the suit for declaration of title and possession over a land. The case of the plaintiff is that she purchased the property 72 feet on the east and 68 feet width on the west. Beyond that there is a lane of 3 feet on the northern side and one foot on the south adjoining the property. The plaintiff also claimed right of easement namely right to take water and right to drain water through the lane . The case of the plaintiff is that she was also taking water and draining sewerage through that lane. Therefore, the suit for declaration and title over the suit lane. The trial court dismissed the suit on the ground that the plaintiff has not proved his case. On appeal, the appellate court also dismissed the claim for title over the property but held that the petitioner is entitled to easementary right over the same. Against that judgement and decree of the appellate court, the second appeal has been filed.

3. The second appeal was admitted on the following substantial questions of law:

1.Whether the lower appellate court has committed an error of law in holding that the respondentis entitled for continuous and customary usageof the suit property as easementary right in theabsence of pleadings and evidence?

2.Whether the lower appellate court has committed an error of law in not dismissing the appeal having found that the respondent is not the absoluteowner of the suit property?

4. Learned counsel for the appellant submitted that the case of the plaintiff was that he was absolute owner of the property. Once he failed to prove that fact, the right of easement cannot be granted. In as much as the right of easement can be claimed only in the property of another person. It is absolutely necessary that the plaintiff must first accept the ownership of the property in another person. Only thereafter, he can claim easementary right. But, in this case such a plea has not been made at all. Therefore the plea of ownership as well as easement cannot go together as they are mutually exclusive. In support of the above contention , learned counsel for the appellant relied on the judgement of this court in P.V.Krishnaier Vs.Perumal Nadar 85 LW919 wherein this court has held that the question of animus plays an important part in the acquisition of easement. If, even at the time of the trial, the plaintiff was proceeding on the basis that he is the owner of a lane he cannot be said to have had the requisite animus for enjoying the easementary right, as he had always been conscious only of his ownership of the land. He also placed reliance on another decision of this court in E.Elumalaichetty Vs.Naina Mudali wherein this court has held that claim of title and easementary right are distinct and contradictory and that when the plaintiff failing to establish claim of title to strip of land specifically pleaded by him he cannot turn round and ask for reliefs on basis of easement. Therefore, the counsel submitted that the case of the plaintiff right from the beginning till the end of the trial was only that he was the absolute owner of the property. Nowhere she has pleaded that she has easementary right over the property. Therefore, the first appellate court is not correct in granting the relief of easement and hence the judgement has to be set aside.

5. Learned counsel for the respondent submitted that it is not correct to say that the right of ownership and easementary right are mutually exclusive or contradictory to each other. In the same case, the plaintiff can ask both for declaration of title or in the alternative for easementary right. Such an action is not illegal. In support of the said contention the counsel relied on the judgment of this court in Palaniswami Naicker Vs.Chinnaswami Naicker 1968 MLJ 502 wherein this court has held as follows:

'The question of animus, no doubt, is always one of fact. Even from the sketches filed along with the plaint and shown to me at the hearing, it is clear that the suit pathway is not only apparent, but continuous. If, thus the suit pathway is apparent and continuous, there is little difficulty in holding that the easement in this case is one which has undoubtedly been secured by prescription and enjoyed as such, if not as an easement of necessity.......................................................A Full Bench of the Calcutta High Court, however, in Narendranath Barai Vs.Aboy Charan Chatopadhyaya took a contrary view. Their Lordships are specifically of the view that a suit for declaration that a ditch belonged to the plaintiff or in the alternative they have acquired a right of easement therein for the passage of their boats is not liable to be dismissed because the plaintiffs claimed in the alternative over the same plot of ground rights (1) of ownership, (2) of easement. Respectrfully accepting the ratio of the Full Bench of the Calcutta High Court, I hold that such an alternative plea as above, even if it could be presumed to have been pleaded in the instant case by the plaintiff, is permissible provided the plaintiff presses only one of them at the appropriate time.'

6. Therefore, relying upon the above judgements the learned counsel for the respondent submitted that even though there is plea of ownership for the property, the court can grant the alternative relief viz., easementary right. Therefore he argued that the first appellate court was right in granting such a decree and hence it is legal and cannot be interfered with. Learned counsel for the respondent also submitted that as per Order 41 Rule 24 where the evidence on the record is sufficient to enable the Appellate Court to pronounce judgement the Appellate court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgement of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. Relying upon this Rule learned counsel for the respondent submitted that the appellate court was correct as there was ample evidence to enable the appellate court to pronounce judgement on the issue raised. Therefore, even in the absence of pleading if there is sufficient evidence, the court can grant the relief.

7. The argument of the learned counsel for the respondent is not acceptable on the facts of this case; As per the plaint, the prayer of the plaintiff is as follows:

'1)Declaring that the plaintiff is the absolute ownerof the suit property;

2)directing the defendant to vacate and surrender vacant possession of the suit property to plaintiff after removing all the constructions and obstructionsput up thereon;

3)directing the defendant to pay the plaintiff the costof this suit; and

4)to grant such further or other reliefs that may bedeemed fit and proper in the circumstances of this case to meet the ends of justice.'

That is the plaintiff filed the suit only for declaration of title over the property. There is no alternative plea at all. Before this court, PW1 has deposed as follows:

jhth re;J bjz;tz;il (thry;g[uk;) 1 mo mfykhft[k; tlg[wk; (bfhy;iyapy;) 3 mo mfykhft[k; cs;sJ/ ehd; th';Fk;nghJ mJ jpwe;nj ,Ue;jJ/ ehd;jhd; mjpy; g[H';fpf; bfhz;L ,Ue;njd;/ vd; tPL fy; nghl;l Xl;L tPL/ mjpy; Xh; cs; Kw;wk; cz;L/ mjpy; tpGk; jz;zPh; rpkpl;oahy; fl;lg;gl;l rhf;fil i& jhth re;J K:yk; ngha; bfhz;L ,Ue;jJ/ mij ,g;nghJ gpujpthjp milj;J itj;Js;shh;/ mjdhy; v';fs; tPl;oy; jz;zPh; btspna nghf tHpapd;wp nj';fptpl;lJ/

Further in the cross examination she has stated as follows:

're;J vdf;F brhe;jk; vd;Wk; mjpy; jz;zPh; Xl ghf;fpaij ,Uf;F vd;Wk; nfl;fpnwd;/'

Therefore, the definite plea of the plaintiff is that she is the owner of the entire lane. She also deposed that by virtue of the ownership over the lane she claims the right to take water through that lane. Therefore, the evidence of the plaintiff is only to claim ownership of the lane and not mere easement. In the judgment relied on by the respondent it is clearly stated that such an alternative plea, even if it could be presumed to have been pleaded in the instant case by the plaintiff, is permissible provided the plaintiff presses only one of them at the appropriate time.. Therefore, even as per the decision relied upon by the learned counsel for the respondent, such alternative plea can be entertained only if the plaintiff has elected one of them at the appropriate time during trial. But, as seen already, the main contention of the plaintiff is only right of ownership even during trial. The right to take water and sewerage is claimed only on the basis of right of ownership over the property. Assuming there is an alternate plea for easement the plaintiff has not chosen the plea of easement alone giving up the right of ownership. Hence the decision of this court referred to above and relied upon by the learned counsel for the appellant herein does not come to his help.

8. In the decision reported in 85 L W 919 it has been held as follows:

'If, even at the time of the trial, the plaintiffwas proceeding on the basis that he is the owner of a land he cannot be said to have had the requisite animus of enjoying the easement in thedefendants as he had always been conscious onlyof his ownership of the land.'

The above decision squarely applies to the facts of the present case. From the evidence as discussed above , it is clear that the respondent never had animus to claim easement over the land. But she was always conscious only of her claim of ownership over the land. Therefore, the lower appellate court is not correct in awarding the relief of easement and hence the judgement of the lower appellate court is liable to be set aside. Hence it is set aside. The substantial questions of law are answered in favour of the appellant.