(Prayer: Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 10.02.2015 made in A.S.No.7 of 2014 on the file of Sub Court, Gobichettipalayam reversing the judgment and decree dated 24.01.2014 made in O.S.No.358 of 2008 on the file of District Munsif Court, Gobichettipalayam.)
1. The appellant is the 3rd defendant in a suit for declaration and for permanent injunction. The 1st respondent herein as the plaintiff sought the relief of declaration to declare his easementary right over the suit schedule cart track and for permanent injunction restraining the defendants from interfering with his right of enjoyment of such easementary right.
2. The case of the plaintiff in short is as follows:
He purchased the suit A-Schedule property by way of three sale deeds along with the right to use the cart track shown as B-Schedule from his vendors, who in turn, got such easementary right from the defendant through an agreement dated 07.03.2005. In all the three sale deeds, the first defendant has signed as a witness acknowledging the easementary right of the plaintiff over the cart track in the suit B-Sschedule property. However, the defendants attempted to destroy the cart track in B-Schedule and cultivate the same. The plaintiff objected to such attempt and gave a complaint before the Police. Hence, the present suit is filed with the relief as stated supra.
3. The defendants 1 and 2 filed their written statement. The 3rd defendant purchased the B-Schedule property along with other properties from the defendants 1 and 2 during the pendency of the suit and got himself impleaded as the 3rd defendant in the suit and filed a separate written statement, however, in line with the written statement already filed by the defendants 1 and 2. Thus, the contention of the defendants are as follows:
No such cart track is in existence in the B-Schedule property. The plaintiff's predecessors in title had not acquired any easementary right over any cart track by way of the agreement dated 07.03.2005. The 8 cents of land shown as B-Schedule property is not a cart track and the defendants 1 and 2 did not convey any easementary right over the same to the plaintiff's predecessors in title under the agreement dated 07.03.2005. The defendants are doing agriculture in the said 8 cents of land. The agreement dated 07.03.2005 is false and no such agreement was executed.
4. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A6 on his side. The defendants 1 and 2 though filed their written statement, have subsequently chosen to remain exparte. The 3rd defendant has examined himself as D.W.1 and marked Exs.B1 to B9 on his side.
5. The trial Court, on considering the rival pleadings of the parties and the evidence let in by them, found that the agreement dated 07.03.2005 has not been acted upon and that the plaintiff has not established his easementary right over the B-Schedule property. Thus, the trial Court dismissed the suit. On Appeal by the plaintiff, the lower Appellate Court found that the said agreement dated 07.03.2005 is a valid document and has been acted upon and that the B-Schedule property is a cart track, over which, the plaintiff is having the easementary right. Accordingly, the lower Appellate Court allowed the Appeal thereby, decreeing the suit.
6. Challenging such reversal finding, the present Second Appeal is filed before this Court by the 3rd defendant. At the time of admitting the Second Appeal, the following substantial questions of law were framed:
i) Whether the first appellate Court is erred in shifting the burden of proof when the plaintiff in a suit for declaration would succeed only on the strength of his case by adducing evidence to discharge the onus on him, irrespective of the question whether the defendants have proved their case or not?
ii) When Ex.A1 dated 07.03.2005 is hit by Section 6(c) of the Transfer of Property Act, 1882, whether the first appellate Court is correct in law in decreeing the suit by recognizing the claim of the plaintiff under the agreement dated 07.03.2005(Ex.A1)?
7. Mr.N.Manokaran, learned counsel appearing for the appellant submitted as follows:
Ex.A1 agreement dated 07.03.2005 is not a conveyance and it is only an agreement of easementary right conferred on the vendors of the plaintiff which right, so conferred, cannot be transferred or re-transferred by those vendors in favour of the plaintiff since such transfer is barred under Section 6(c) of the Transfer of Property Act, 1882. Since Ex.A1 is not supported by consideration, there is no valid conveyance of title. Therefore, no right or title on the property was conveyed on the vendors of the plaintiff except easementary right. Even otherwise, Ex.A1 was not acted upon and even assuming so, it got revoked, the moment the B-Schedule property was sold to the 3rd defendant. The vendors of the plaintiff were not examined by him since they are the proper parties to speak about Ex.A1. He further contended that though the defendants 1 and 2 remained exparte after filing their written statement, the 3rd defendant, being the purchaser pendente lite is entitled to defend the suit. In support of such contention, learned counsel relied on the decision of the Apex Court reported in 2013(2) CTC 104 (Thomson Press (India) Ltd. vs. Nanak Builders and Investors P. Ltd.).
8. Mr.A.K.Kumarasamy, learned counsel appearing for the respondents submitted as follows:
The plaintiff's vendors got the easementary right through Ex.A1 and the plaintiff purchased A-Schedule property along with such easementary right over the B-Schedule property from his vendors. The recitals under Ex.A1 is very clear that the defendants 1 and 2 cannot transfer such right conferred on the vendors of the plaintiff to any third parties. The 3rd defendant is only the subsequent purchaser during the pendency of the suit. The defendants 1 and 2 remained exparte and did not contest the suit. The subject matter right is not a license and on the other hand, it is only an easementary right.
9. Heard both sides and perused the materials placed before this Court.
10. The plaintiff sought the relief of declaration of his easementary right over the B-Schedule property and permanent injunction restraining the defendants from interfering with such right. The plaintiff claims B-schedule property as a cart track, while the defendants denied the existence of such cart track in the B-Schedule. It is not in dispute that A-Schedule property, an agricultural land, was purchased by the plaintiff under three sale deeds marked as Exs.A1, A3 and A4 dated 20.08.2008 from one Nachimuthu, Karuppuswamy, M.P.Subramaniam and Sethupathy. It is the case of the plaintiff that his vendors have conveyed A-Schedule property along with the easementary right over the B-Schedule property, which in turn, they have obtained arlier from the defendants 1 and 2 under the agreement dated 07.03.2005. It is seen that in all the three sale deeds, the easementary right over the B-Schedule property was referred to and conveyed to the plaintiff by his vendors. It is also the fact that the first defendant has signed in all the three sale deeds as the attesting witness thereby acknowledging the easementary right of the plaintiff over the cart track in the suit B-schedule property. A perusal of Ex.A1 agreement dated 07.03.2005, a registered document would show that the 1st and 2nd defendants on one part and the vendors of the plaintiff on the other part entered into an agreement of easementary right, wherein it is recited as follows:
Therefore, it is evident from the perusal of Ex.A1 that the defendants 1 and 2 have conferred the easementary right on the vendors of the plaintiff over the B-Schedule property to use it as a cart track for the purpose of reaching their agricultural land at S.No.516/2 and 519/2 to Vaniputhur Village, Gobichettipalayam Taluk. It is also specifically referred to in the agreement that if the agricultural lands belonged to the respective parties are sold to some third parties, such parties will also have such easementary right over the B-Schedule property. One part of the parties to the above said agreement namely, the vendors of the plaintiff have admittedly conveyed their agricultural lands referred to in the said agreement to the plaintiff by way of three sale deeds. The above said agreement under Ex.A1 is a registered document.
11. Learned counsel for the appellant mainly contended that an easementary right cannot be transferred since the same is as prohibited under Section 6(c) of the Transfer of Property Act, 1882. Therefore, he submitted that the vendors of the plaintiff have no right to transfer such easementary right conferred on them under Section Ex.A1 by the defendants 1 and 2.
12. Let me consider whether the above contention of the appellant's counsel is legally sustainable. Section 4 of the Indian Easements Act, 1882, defines "Easement" as follows:
"An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners:- The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner."
13. A perusal of the above said provision would show that an "easement" is a right conferred for the beneficial enjoyment of the dominant heritage and the owner of such dominant heritage is called dominant owner while the land in which such easement right is to be exercised is a servient heritage and that the owner of such servient heritage is called as servient owner.
14. Now let me consider the scope of Section 6(c) of the Transfer of Property Act,1882, which prescribes transfer of easement, which reads as follows:
"An easement cannot be transferred apart from the dominant heritage."
15. By reading the above said provision of law and heavily relying upon the same, the learned counsel for the appellant sought to contend that easementary right cannot be transferred by the vendors of the plaintiff. It appears that the learned counsel for the appellant has misconstrued or misread the above said provision without looking into the actual scope and ambit of the same. A careful perusal of the above provision would make it clear that what cannot be transferred is only an easement exclusively without transferring the dominant heritage, namely, the land for which such easement right is conferred in the servient heritage. In other words, a transfer of dominant heritage would automatically pass the easement right also to the person in whose favour such transfer takes place. To put it more clearly, the easement right and dominant heritage cannot be transferred separately by segregating one from the other to two different persons, since such easementary right would automatically follow the right on the dominant heritage if such dominant heritage is transferred to another person. In this connection, the following decisions of this Court reported in AIR 1924 Madras 108 (Gangulu v. Jagannatham), can be noted wherein it has been observed as follows:
"An easement of necessary, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property, but an easement apparent and continuous and necessary for enjoying the portions severed from the unity of ownership will pass to the transferee unless a contrary intention is expressed or implied in the instruments of transfer."
Likewise, AIR 1924 Madras 812 (Ruckmani v. Veerasami), it has been observed as follows:
"Held: that unless there was a stipulation to the contrary at the time of the transfer the transferees were entitled to the same facilities of irrigation that used to be attached to the land transferred before it was transferred."
Therefore, from the above discussion of the position of law and the decisions rendered by this Court earlier, I am of the view that the contention of the learned counsel for the appellant cannot be sustained. The lower appellate Court has rightly decreed the suit taking into consideration of the existence of Ex.A1 agreement followed by the sale deeds marked as Exs.A2 to A4 in favour of the plaintiff.
16. One more aspect to be noted in this case is that the defendants 1 and 2, who are the parties to the agreement under Ex.A1, though filed their written statement, have, however, not chosen to contest the matter latter. They remained exparte. They were not even examined as witnesses on the side of the defendants. Needless to say that any amount of pleading without there being any evidence in support of such pleading, cannot be looked into or sustained or held to be proved especially, when the other side disputes such claim. Admittedly, the 3rd defendant, who is the appellant herein, is only a subsequent purchaser during the pendency of the suit. He was impleaded as a party defendant only at a later point of time. No doubt, he can contest the suit but the decree of such contest would vary. Certainly, the 3rd defendant cannot speak anything about Ex.A1 agreement as he did not come into the picture at all at the time of execution of the same. Therefore, he is not competent to speak anything about the intention of the parties to Ex.A1. If the defendants 1 and 2 have not come forward to contest the suit and dispute the claim of the plaintiff, the 3rd defendant, a subsequent purchaser, cannot dispute the claim of the plaintiff, when such claim is based on the agreement under Ex.A1 entered into between the vendors of the plaintiffs and the defendants 1 and 2. In fact, the mischief mongers are the defendants 1 and 2 who dishonestly executed the sale deed in favour of the 3rd defendant in respect of suit 'B' Schedule, knowing fully well that they are bound by the terms of earlier agreement for easementary right under Ex.A1 fastened on such property.
17. The trial Court failed to consider all these aspects and erroneously dismissed the suit which the lower Appellate Court has set right by reversing such findings and decreeing the suit. Therefore, I find that the appellant herein is not entitled to succeed. Consequently, the substantial questions of law raised in this appeal are answered against the appellant. Thus, the Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.