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Thannir Venkatarama Chetti Vs. Mudagutisami Chetti and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in6Ind.Cas.605
AppellantThannir Venkatarama Chetti
RespondentMudagutisami Chetti and ors.
Cases ReferredSee Krishnamaraza v. Marraju
Excerpt:
kasement of necessity - right of way--access otherwise. - .....had an easement of necessity. if the plaintiff could have access to a2 through the house b, he would have no right of way through n as an easement of necessity. see krishnamaraza v. marraju 28 m. 495 : 15 m.l.j. 255. but the mortgage deed exhibit a expressly refers to a right of way through the lane and it might have been acquired by prescription. the 3rd defendant is a transferee of the mortgage right. the reference in exhibt a to the right of way is evidence against him. it is true that the 3rd defendant is found to be the owner and as such he is entitled to raise the contention that there was no easement of a right of way. the district judge is requested to find whether the plaintiff has acquired a right of way over the lane n. fresh evidence may be taken if the judge thinks.....
Judgment:

1. We do not think the judgment of the Court below as regards the eaves is open to exception.

2. As regards the lane N, we are unable to uphold the view of the Courts below that the plaintiff had an easement of necessity. If the plaintiff could have access to A2 through the house B, he would have no right of way through N as an easement of necessity. See Krishnamaraza v. Marraju 28 M. 495 : 15 M.L.J. 255. But the mortgage deed Exhibit A expressly refers to a right of way through the lane and it might have been acquired by prescription. The 3rd defendant is a transferee of the mortgage right. The reference in Exhibt A to the right of way is evidence against him. It is true that the 3rd defendant is found to be the owner and as such he is entitled to raise the contention that there was no easement of a right of way. The District Judge is requested to find whether the plaintiff has acquired a right of way over the lane N. Fresh evidence may be taken if the Judge thinks fit. The finding should be submitted in six weeks and seven days will be allowed for filing objections.


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