J Chandrasekaran and Others Vs V D Kesavan - Citation 953941 - Court Judgment

Judgment:

(Second Appeal against the judgement and decree dated 19.12.2005 passed by the Principal Subordinate Judge, Erode, in A.S.No.31 of 2005 confirming the judgement and decree dated 21.9.2004 passed by the II Additional District Munsif, Erode in O.S.No.216 of 2003.

Cross Appeal against the judgement and decree dated 19.12.2005 passed by the Principal Subordinate Judge, Erode, in A.S.No.31 of 2005 in so far as reversing the judgement and decree dated 21.9.2004 passed by the II Additional District Munsif, Erode in O.S.No.216 of 2003.)

COMMON JUDGMENT:

The second appeal is focussed by the defendants as against the judgement and decree dated 19.12.2005 passed by the Principal Subordinate Judge, Erode, in A.S.No.31 of 2005 confirming the judgement and decree dated 21.9.2004 passed by the II Additional District Munsif, Erode in O.S.No.216 of 2003, which was filed for declaration, permanent and mandatory injunctions.

The Cross-appeal is focussed by the plaintiff as against the judgement and decree dated 19.12.2005 passed by the Principal Subordinate Judge, Erode, in A.S.No.31 of 2005 in so far as partly reversing the judgement and decree dated 21.9.2004 passed by the II Additional District Munsif, Erode, in the said O.S.No.216 of 2003..

2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.

3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus:

(i) The respondent in the second appeal-Kesavan filed the suit as against the defendants seeking the following reliefs:

"a) declaring that the plaintiff is the co-owner of the suit A schedule property along with the defendants;

b) granting a permanent injunction restraining the defendants, their men and agents from interfering the plaintiff peaceful enjoyment of the suit A schedule property in any manner either by storing any material in the suit A schedule property or causing any obstruction like parking their vehicle blocking the usage of the same;

c) granting a mandatory injunction directing the defendants to remove the electric meters etc., fitted in the suit 'AB' wall morefully described in the 'B' schedule within a time fixed by this Honourable Court and in case of non compliance by them directing the same to be done by an officer of this Honourable Court at the cost of the defendants;

d) granting a mandatory injunction directing the defendants and their successors in interest to remove the wall with door way etc., morefully described in schedule C of the plaint within a time to be fixed by this Honourable Court and to case of non-compliance by them directing the same to be done by an officer of this Honourable Court at the cost of the defendants;

e) directing the defendants to pay the costs of the suit to the plaintiff; and

f) granting such other and further reliefs as this Honourable Court may deed fit and proper and circumstances of the case."

(extracted as such)

(ii) The fourth defendant-Jayaramakrishnan filed the written statement resisting the suit, which was adopted by defendants 1 to 3.

(iii) Whereupon issues were framed.

(iv) Up went the trial, wherein the plaintiff examined himself as P.W.1 along with his father Dharmalingam as P.W.2 and Exs.A1 to A12 were marked on his side. The fourth defendant-Jeyaramakrishnan examined himself as D.W.1 and Exs.B1 to B16 were marked on the defendants' side. Exs.C1 and C2 were marked as Court documents.

(v) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed; whereupon the first appellate Court partly modified the judgement and decree of the trial Court and granted the relief excluding the Northern portion of the suit common path way.

4. Challenging and impugning the judgements and decrees of both the Courts below, the defendants preferred the second appeal; however the plaintiff filed the cross appeal relating to the rejection of the part of his claim by the first appellate Court.

5. The gist and kernel of the case of the plaintiff as stood exposited from the plaint would run thus:

(i) There emerged a registered partition deed Ex.A1 dated 25.6.69 among the father of the plaintiff, namely, Dharmalingam, and Dharmalingam's brothers Jayaramakrishnan-D4 herein and one Gopalakrishnan, as per which, Dharmalingam was entitled to use along with his brothers, the 'A' scheduled property, which is a common path way

(ii) The defendants are having their electricity meters fixed on the wall of the plaintiff, which is situated adjacent to the East of the common path way, and the plaintiff insisted for the removal of those three electric metres from his wall, for which, the defendants declined; the defendants also are causing disturbance to the plaintiff in using the said suit path way; they also went to the extent of preventing the plaintiff from using the Northern portion of the said common path way. Hence the suit.

6. Challenging and impugning the averments/allegations in the plaint, the defendants filed the written statement, the gist and kernel of it would run thus:

(i) Ever since 1969 the defendants have been in exclusive possession and enjoyment of the 'A' scheduled lane. The plaintiff had no right over it. The defendants had put up a gate at the entrance of the lane on the Southern side and they had also put up another gate at the 'EB' portion found set out in the suit schedule plan and as such, they acquired prescriptive title over the suit lane and at no point of time, the plaintiff had been using the said lane.

(ii) The three electric meters are found fixed on the wall of the plaintiff ever since 1969 and even before that, and thereby, the plaintiff acquiescence or to such act of the defendants and the latter also have acquired their right to keep the meters fixed on the wall of the plaintiff and as such, the former cannot call upon the latter to remove the said meters.

(iii) Relating to the gate put up at the 'EB' portion of the plan, the plaintiff is having no right to get it removed, because the area situated to the North of the said gate at 'EB' portion exclusively belongs to the defendants. Accordingly, the defendants would pray for the dismissal of the suit.

7. An Advocate Commission was appointed during the pendency of the suit and he submitted his report also.

8. The learned Senior counsel for the defendants would advance his arguements, which could pithily and precisely be set out thus:

(i) There is no shard or shred, jot or miniscule evidence to show that at any point of time the plaintiff used the said suit lane.

(ii) Admittedly, there is a gate at the Southern edge of the suit lane abetting the road and it is under the exclusive use of the defendants. By non-user, the plaintiff lost his right to use the lane, even if it is assumed as though he had one such right.

(iii) The plaintiff is having ingress and egress to his house from the main road running from East to West on the South of his house and in such a case, there was no necessity at all for him to use the suit lane situated to the West of his house. Now then, belatedly, because of the strained relationship between the plaintiff and the defendants, the former had chosen to file the suit seeking the aforesaid reliefs.

(iv) There is mis-description in the partition deed Ex.A1 dated 25.6.1969 referring to the earlier partition deed of the year 1955 (Ex.B1), when admittedly during the year 1955 there was no such common path way at all. As such, based on such erroneous document, no right can be asserted by the plaintiff.

(v) Ever since 1969 and even before that, those three electric metres of the defendants are found fixed on the wall of the plaintiff, adjacent to the said lane, and the plaintiff also acquiescenced to it and in such a case, the question of removal of those metres does not arise at all.

(vi) The defendants have been spending money for maintaining the suit lane and paying tax and also keeping it in usable condition and at no point of time, the plaintiff shared any such expenditure in that regard, which is indicative of the fact that there was non-user of the suit lane by the plaintiff.

Accordingly, the learned Senior counsel for the appellants herein/defendants would pray for setting aside the judgements and decrees of both the Courts below and for allowing the suit.

9. In a bid to extirpate and pulverise, torpedo and impugne the arguements and pleas as put forth on the side of the defendants, the learned counsel for the respondent herein/plaintiff would pyramid his arguements, which could pithily and precisely be set out thus:

(i) The partition deed of the year 1969 (Ex.A1), which emerged between Jeyaramakrishnan-D4 the brother of the plaintiff's father, namely, Ramalingam, would unambiguously and unequivocally shed light and point up that there existed a common lane for the use of the said Jeyaramakrishnan and Dharmalingam. In such a case, the question of pleading prescription is a well neigh impossibility.

(ii) Once a document envisages such a right, unless it could be shown that there was express exclusion by one co-owner of the path way by the other, no prescription could be pleaded by such co-owner.

(iii) Simply because the plaintiff allowed those three electric meters to be fixed on his wall adjacent to the lane that it does not mean that permanently the defendants could have such facility. There is no question of acquiring prescription would arise in regard to matters of this nature.

(iv) The Tamil Nadu Electricity Supply Code, 2004, would contemplate no such right for a consumer of electricity supply to have such electric meters fixed on in another man's house.

(v) Paragraph No.7(4) of the Tamil Nadu Electricity Supply Code, 2004, would contemplate the said proposition.

(v) The first appellate Court committed error in simply denying the right of the plaintiff relating to the Northern portion of the said common path way. Simply because there was a gate enclosing the Northern portion of the path way at 'EB' point found set out in the suit plan, that it does not mean that the plaintiff should be deprived of his right over it.

Accordingly, the leaned counsel would pray for setting aside the judgement and decree of the first appellate Court relating to such denial of the right of the plaintiff regarding that Northern portion of the lane and for restoring the judgement and decree of the trial Court in toto.

10. My learned predecessor framed the following substantial questions of law:

"1. Whether having accepted the axiomatic dictum of law established by the precedents that it is the bounden duty cast upon the plaintiff to prove his case the lower appellate Court's judgement is not vitiated in entirely having been based on the reasoning and finding that the appellant has failed to prove his case?

2. Whether the judgement of the lower appellate Court is vitiated by perverse findings merely based on the admissions of appellant without giving due credence to the facts and oral evidence and without appreciating and without giving due credence as well as totally overlooking the factual context and factual background under which they have been made assuming without admitting them to be true?

3. Whether the lower appellate court's judgement and decree are entirely vitiated in having failed to take into account the cardinal principles for granting mandatory injunction with regard to the case of alleged co-ownership set up by the plaintiff?

11. It appears, concerning the cross-objection no separate substantial question of law is found framed. After hearing both sides, I would like to reformulate the substantial questions of law pertaining to the second appeal as well as the cross-objection, to the knowledge of both sides as under:

(i) Whether the Courts below committed any error in upholding the right of the common usage over the suit lane found specified in 'A' schedule of the plaint based on Ex.A1-the partition deed of the year 1969, ignoring the mis-description as found in the compromise decree Ex.A2 dated 5.1.2000?

(ii) Whether the Courts below failed to take note of the alleged non-user of the suit lane by the plaintiff, while decreeing the suit?

(iii) Whether the plea of prescription as pleaded by the defendants was ignored by the lower Court unjustifiably without properly appreciating the evidence adduced on the side of the defendants.

(iv) Whether the first appellate Court was justified in giving a finding that the concept 'adverse possession' cannot be pressed into service at all in the facts and circumstances of this case.

(v) Whether the plea of acquiescence or prescription as pleaded by the defendants relating to their attempt to retain their three electric meters on the wall of the plaintiff, which is situated adjacent to the East of the common lane, described in the 'A' schedule of the plaint, is tenable?.

(vi) Whether the first appellate Court was justified in rejecting the portion of the prayer of the plaintiff relating to the Northern portion of the path way from the point 'EB' found specified in the plaint plan?

(vii) Whether there is any perversity or illegality in the judgements and decrees of both the Courts below?

12. All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another.

13. There are three documents which are to be considered in depth.

(i) The partition deed of the year 1955-Ex.B1, certain excerpts from it would run thus:

Tamil

(ii) The Partition deed of the year 1969-Ex.A1, certain excerpts from it would run thus:

Tamil

(iii) Compromise decree of the year 2000-Ex.A2, certain excerpts from it would run thus:

Tamil

14. The learned Senior counsel for the defendants, inviting the attention of this Court to the deposition of P.W.2-Dharmalingam-the father of the plaintiff, would try to throw the issue into relief by accentuating the fact that when P.W.2 Dharmalingam, who was a party to the partition deed of the year 1969-Ex.A1 himself admitted that there was no common lane found envisaged in the partition deed of the year 1955-Ex.B1, the question of referring it as the basis in the compromise for laying claim over the suit lane would be a well-neigh impossibility; for which, the learned counsel for the plaintiff would try to explain and expound by pointing out that such an extreme view would render violence to the purport of the claim of the plaintiff as well as to the categorical admissions found envisaged in the partition deed of the year 1969-Ex.A1.

15. The recitals in Ex.A1 is of paramount importance because both D4 and P.W.2-Dharmalingam, the father of the plaintiff happened to be the parties to it. In that, without mincing words, they admitted that the suit lane should be available for both of them.

16. Indubitably and indisputably the plaintiff happens to be the son of Dharmalingam and he derived his title only under his father even though not by inheritance, at least by compromise as found envisaged under Ex.A2.

17. The learned Senior counsel for the defendants would argue that the recitals in the compromise-Ex.A2 would clearly show up that there is no conferment of any right of any common usage in favour of the plaintiff and only the said common lane has been shown as the Western boundary for the plaintiff's allotment of share and in such a case, based on such boundary description alone the plaintiff cannot lay claim over the suit lane.

18. However, the learned counsel for the plaintiff would appropriately and convincingly explain the position by pointing out that the common lane was a pre-existing one, over which, the said plaintiff's father Dharmalingam and D4 had common right of use, and in such a case, no fresh conferment of any right in favour of the plaintiff was required.

19. The learned Senior counsel for the defendants would try to distinguish and differentiate between the wordings used in 'A' schedule of Ex.A2 as under:

Tamil

and the wordings used in 'D' schedule of Ex.A2 as under:

Tamil

20. As such, the learned Senior counsel would develop his arguement by pointing out that in parimateria with the description as found in the 'A' schedule of Ex.A2, as referred to supra, there is no such description under 'D' schedule of Ex.A2 relating to the plaintiff's share. Simply because the scribe had chosen to use certaiin phraseology in one place and another place in a different in Ex.A2 place that it does not mean that continuously the plaintiff was excluded from using the common path way.

21. 'Ubi jus, ibi remedium' is the maxim. As has been countenanced by me supra, the right of common usage in the common path way, unless it is found excluded, the question of presuming and discerning to the contrary is legally impossible.

22. I would also like to highlight and point up one other point that the 'A' schedule referred to in Ex.A2 has not been given to any third party, but to P.W.2-Dharmalingam-the father of the plaintiff and to the sister of the plaintiff-Sarojini and even by phantasmagorical thoughts it cannot be stated that the plaintiff's father and sister had excluded the plaintiff from using the common path way. As such, in my considered opinion, such a distinction sought to be made on the side of the defendants, would amount to tweedledum and tweedledee rock and a hard place; six of the one and half a the dozen of the other and not one that of chalk and cheese.

23. The compromise-E.A2 emerged based on Ex.A1-the partition deed of the year 1969. Now the suit is between Jeyaramankrishnan and his relatives on the one side and the plaintiff who claims virtually right under his father, but for his father-Dharmalingam, the plaintiff would not have got any share in Ex.A2. In such a case, carving out an exception, as against the plaintiff from the use of the common path way is totally unacceptable.

24. Simply because there is an error in Ex.A2 by referring to Ex.B1-the partition deed dated 2.5.1955, as the basis for the right over the common path way, instead of specifying the partition deed Ex.A1, the genuineness and the validity of the recital in Ex.A2 cannot be looked askance at and it cannot be discarded and if done so, it will amount to throwing the baby along with bathe water.

25. I call up and recollect the following maxims:

(a) Verbageneralia genaraliter sunt intelligenda – General words are to be understood generally.

(b) Verbaita sunt intelligenda, ut res magis valeat quam pereat - Words are to be so understood that the matter may have effect rather than fail.

(d) Mala grammatica non vitiat chartum. Sed in expositione instrumentorum mala grammatics quoad fieri possit evitanda est – Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided.

26. The sum and substance of those maxims would unambiguously and unequivocally exemplify and indicate that a document has to be read as a whole and the spirit of it should be taken note of, and not to be carried away by the mere letters found therein. Any one who tries to rely on mere wordings but without keeping in mind the object and spirit of the document, would be considered as a person who has thrown the baby along with the bathe water.

27. Accordingly if the aforesaid principle is applied, it is crystal clear that ever since the emergence of Ex.A1-the partition deed dated 25.6.1969, Dharmalingam and his heirs had the right of common passage in the 'A' schedule lane.

28. No doubt, the commissioner's report and the evidence on record would establish and display that at the entrance of the lane itself there was one gate and that it does not mean that the plaintiff was prevented from using it ever since 1969.

29. The learned Senior counsel for the defendants would submit that by non-user the plaintiff lost his right, if any, over the use of the lane. 'necvi, nec clam, nec precario' is the maxim and accordingly if viewed there should be clear evidence on the side of the defendants to establish the same.

30. I would also recollect and call up the following decision of the Honourable Apex Court:

2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) regarding ouster.Certain excerpts from it would run thus:

"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)

6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.

8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.

9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially “wilful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.

New consideration in adverse possession law

11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:

“Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.”

14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.

21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11)

“Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.

32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5)

“Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." (emphasis supplied)

31. A plain running of the eye over the precedent as well as Section 15 of the Easements Act would unambiguously and unequivocally point up and show up the fact that the plea of prescription as sought to be pressed into service by the defendants cannot be countenanced and up held. Once as per Ex.A1-the partition deed dated 25.6.1969, a specific right is found conferred on Dharmalingam(P.W.2), the question of excluding Dharmalingam's heir from using the suit lane by just pleading prescription would not deprive them of their right over it.

32. I could visualise a hypothetical situation. Had really the defendants raised any construction enclosing or encroaching the path way or converted the path way into some other use, then the matter would be entirely different. In such an eventuality, the question of acquiescence blossoming into prescription might arise. But, in this case, physically and in reality, the said suit lane is in existence as on this date. In such a case, simply by uttering out by word of mouth that the defendants acquired prescriptive title over the suit lane is quite untenable and antithetical to the well established principles of law.

33. I would also go to the extent of pointing out that once a right is found conferred on a person and that too, in respect of a lane, it is not necessary that through out the year, without any break, he should make use of it and to this proposition I can find support from the precedents as found embodied in paragraph No.72 relating to Section 15 of the Indian Easements Act, 1882, of the famous treatise 'SANJIVA ROW'S commentary on 5^th Edition, which is extracted hereunder:

"72. Exercise of discontinuous easements of right of way – It has been held since long that a discontinuous easement of a right of way is never expected to be exercised every moment. It is enough if it is exercised on proper occasions. The mere fact that a time interval of non-user elapsed between successive acts of user would cause no break in the period of enjoyment. If the use of the way be continuous and uninterrupted generally. It is sufficient if it is used at such times as the users convenience and business needs require. It is not necessary to prove an actual continuous user of the way by day and night for the full prescriptive period without any cessation provided the elements essential to an easement by prescription are present, and under such circumstances as exclude the presumption of a voluntary abandonment on the part of the party claiming the easement. Indeed, the circumstances may be such as to show a continuous use although direct evidence of actual use as to one or more years during the prescriptive period is wanting."

34. As such, in the absence of any clinching evidence to the effect that the plaintiff was prevented from using the lane for over the statutory period, the question of depriving him of his right would not arise at all. Both the Courts below on that aspect correctly analysed the matter and upheld the right of the plaintiff to use the lane, warranting no interference in second appeal.

35. The learned counsel for the plaintiff would try to canvass the case that the first appellate Court unjustifiably deprived the plaintiff of his right to the Northern portion of the suit lane from the point 'EB' where there is a gate.

36. In my aforesaid hypothetical example I visualised a situation that if there is conversion of path way itself, then the position would be different. Here exactly that has happened so far as the Northern portion of the suit lane from the line 'EB' is concerned.

37. The defendants having put up the gate at the 'EB' portion, by segregating and separating the common path way and also having constructed a staircase across the suit lane also at the Northern extreme, indicated that the plaintiff was prevented from having access to it and in such a case, the first appellate Court was justified in rejecting the prayer of the plaintiff over that northern portion of the suit lane from 'EB' line is concerned.

38. Over and above that, in Ex.A1, while describing the 'B' Schedule, it is found specified therein that Goplakrishnan the one other brother of Dharmalingam(P.W.2) was allotted share to the North of the common lane and as such, the Northern portion of the common lane was excluded from the common usage. In fact, as on date, the common lane running from South to North up to 'EB' point in the plaint plan, which is in concinnity with the length of the plaintiff's house is under the common use of the parties to the lis and that has to be upheld and the first appellate Court au fait with law and au courant with facts, by applying a posterior approach correctly decided the lis, warranting no interference in second appeal on that aspect.

39. The learned Senior counsel for the defendants would inviting the attention of this Court to the fact that ever since 1969 and even before that those three electric metres of the defendants are found fixed on the wall of the plaintiff and the latter acquiescenced to it and thereby, the defendants are having right to continue such metres fixed on the plaintiff's wall.

40.I would like to fumigate my mind with paragraph No.7 of the Tamil Nadu Electricity Supply Code, 2004. Paragraph No.7(4) is extracted hereunder for ready reference:

"7. Installation of Meter – (1) . . . . .

(2) . . . .

(3) . . .

(4) The meter shall , ordinarily, be installed at the point of entry to the consumer's premises at a suitable and easily accessible place as the engineer may decide. After installation, the security seals shall be affixed in the presence of the consumer or his representative on the meter box cover, current transformer chamber, terminal cover of the meter, test block, cut outs, air-break switch and gate and such other part of the installation as the licensee may decide. The consumer shall be responsible to ensure that the meter and the seals are not stolen, damaged or tampered with. The consumer shall run his wiring from such point of supply."

41. A mere running of the eye over it, would indicate and exemplify that every consumer under the Electricity Supply Code is expected to have the electric metres in such a manner that directly he has to get the supply from the public road. With reference to Section 15 of the Easements Act coupled with Section 4 of the Act, which defines easement, if the matter is viewed, it is pellucidly and glaringly clear that in matters of this nature, prescription cannot be pleaded.

42. Under the law of TORTS also there is no precedent available in support of the contention of the defendants. Simply because the plaintiff has tolerated the defendants to have their electric metres fixed on his wall, that it does not mean that ad nauseam andad infinitum he should tolerate the same.

43. No doubt, the plea of nuisance has not been pleaded by the plaintiff. Even then, if one person is having some fixtures on another man's property, it should necessarily be described only as 'nuisance' and any length of period of such use would not enure to the benefit of the user concerned unless specifically law enables him to do so, as in the case of Tigniimmittendi (In the civil law, the name of a servitude which is the right of inserting a beam or timber from the wall of one house into that of a neighbouring house, in order that it may rest on the latter, and that the wall of the latter may bear this weight), right of support etc.

44. I would like to visualise a hypothetical situation. If really the defendants are held to be having such right of prescription over the said portion of the wall, then the plaintiff cannot be precluded from demolishing his wall. Now-a-days, it is quite common that set back areas are provided while raising construction after demolition. Assuming for the moment that the plaintiff demolishes his wall and he by leaving a few feet set back, adjacent to the lane, and raises a new wall, can the defendants claim a right to fix their three electric metres on the newly built up wall quite inside the plaintiff's plot. The answer is quite obvious and axiomatic. Hence, I am of the considered view that without any back up of the law, such a plea taken by the defendants cannot be countenanced and upheld. Wherefore, on that point, both the Courts below decided correctly.

45. Accordingly, the substantial questions of law are decided as under:

Substantial Question of law (i) is decided to the effect thatthe Courts below have not committed any error in upholding the right of the common usage over the suit lane found specified in 'A' schedule of the plaint based on Ex.A1-the partition deed of the year 1969, and the reference to Ex.B1-the partition deed dated 2.5.1955 was not fatal to the claim of the plaintiff.

Substantial Question of law (ii) is decided to the effect thatthe there is no evidence to show that the plaintiff lost his common right of user by his alleged non-user of the common path way.

Substantial Question of law (iii) is answered to the effect thatthe plea of prescription was a misconceived one on the part of the defendants.

Substantial Question of law (iv) is decided to the effect thatthe first appellate Court was justified in giving a finding that the concept 'adverse possession' cannot be pressed into service in the facts and circumstances of this case, even though in rare cases, on clinching evidence, such a concept could be ushered in.

Substantial Question of law (v) is decided to the effect thatthe plea of acquiescence or prescription as pleaded by the defendants relating to their attempt to retain their three electric meters on the wall of the plaintiff, is untenable.

Substantial Question of law (vi) is answered to the effect thatthe first appellate Court was justified in rejecting the portion of the prayer of the plaintiff relating to the Northern portion of the path way from the point 'EB' found specified in the plaint plan.

Substantial Question of law (vi) is decided to the effect thatthere is no perversity or illegality in the judgements and decrees of both the Courts below.

46. However, fair and square the learned Senior counsel for the defendants would argue that if it has to be held by this Court that 'A' scheduled property happened to be the common passage for both sides, then the expenses incurred and the tax paid so far relating to it should be borne by both sides, but so far, the plaintiff has not paid any amount in that regard.

47. Whereas, the learned counsel for the plaintiff would submit that there is no pint or jot of evidence in that regard.

48. The learned Senior counsel for the defendants, inviting the attention of this Court to the written statement and the proof affidavit of D.W.1 would develop his arguement that such maintenance cost was borne by the defendants and they also paid the property tax.

49. No doubt, since the parties were fighting at arms length and both the Courts below failed to consider that point and no specific issue also has been framed in that regard by the Courts below, I would like to give liberty to the defendants to file application within two months from the date of receipt of a copy of this order before the trial Court and claim for such sharing of the tax paid as well as the expenses incurred in maintaining the suit lane for the period commencing from three years anterior to the filing of the suit till date and in the event of filing such application, the plaintiff is having the right to file counter and contest the same. It is for the trial Court to decide regarding sharing of such expenses, on appropriate evidence.

50. In the result, the second appeal as well as the Cross-appeal are dismissed. However, there is no order as to costs.

Court	Chennai High Court
Decided On	Oct-08-2012
Case Number	S.A. No. 351 of 2006 & Cros.Obj. No. 163 of 2011
Judge	G. RAJASURIA
Appellant	J. Chandrasekaran and Others
Respondent	V.D. Kesavan
Advocates:	For the Petitioners: S.V. Jayaraman, Sr. Counsel for R. Lakshminarayanan, Advocate. For the Cross Objector: V. Bharathidasan, Advocate. For the Respondent: V. Bharathidasan, S.V. Jayaraman, Sr. Counsel for R. Lakshminarayanan, Advocates.

J. Chandrasekaran and Others Vs. V.D. Kesavan - Court Judgment