JUDGMENT

The plaintiff, who had succeeded before the trial Court and lost before the first appellate Court is the appellant in this Second Appeal. This appeal is directed against the judgment and decree of the learned Additional Sub-ordinate Judge of Tuticorin made in A.S No. 59 of 1985 reversing the judgment of the learned District Munsif, Sri Vaikundam made in O.S.No350 of 1980.

2. Heard Mr. R. Dhamodaran for the appellant and Mr. P. Peppin Fernando for the respondent.

3. At the time of admission, the following substantial question of law was framed by this Court:

“Whether the lower Appellate Court was justified in reversing the finding of the trial Court without property appreciating and without giving due consideration to the recitals in Ex. A1”.

4. For convenience, the parties to this appeal will be referred as arrayed before the trial Court.

5. The learned counsel for the appellant after submitting his arguments with respect to the legal contentions submitted that the appellant is chosing the alternative relief of right of easement by necessity and giving up the claim of co-ownership in respect of the disputed pathway. This election made by the counsel for the appellant is being objected to by Mr. P. Peppin Fernando, counsel for the respondent. Therefore, this Court has to consider as to whether such an election of alternative relief is permissible in this Second Appeal.

6. The plaintiff instituted the suit O.S No. 350 of 1980 on the file of the District Munsif Court, Srivaikundam praying that the second schedule property is a common land of the plaintiff and the defendant and he is entitled to use the same to reach the first schedule property and consequential relief of permanent injunction restraining the defendant from using the second schedule property. The plaintiff alternatively prayed that the plaintiff is entitled to use the second schedule as pathway and therefore, he is entitled to the relief of declaration and injunction.

7. The suit was resisted by the defendant contending that the second schedule is his exclusive property and that the plaintiff is not entitled to the relief of declaration, much less the easementary right prayed for by him.

8. After contest, the trial Court granted a declaration that the suit second schedule property is a common passage belonging to the plaintiff and the defendant, besides granting the relief of permanent injunction as well as mandatory injunction to remove the wall put up across the second schedule property,

9. As the trial Court had upheld the plea of common passage, the defendant preferred A.S No. 59 of 1985 on the file of the Sub-Court, Tuticorin. The first Appellate Court set aside the judgment and decree of the trial Court, allowed the appeal and dismissed the suit with cost. Being aggrieved, the present Second Appeal has been preferred.

10. As already pointed out Mr. Damodharan, the learned counsel for the appellant elected the relief and confined the claim to the declaration that the plaintiff is entitled to easementary right by necessity and consequential injunction and mandatory injunction as well and gave up the plea of in common passage.

11. Mr. Peppin Fernando, the learned counsel for the respondent contended that such an election is not permissible at this stage and no interference is called for in this Second Appeal as the judgment of the first Appellate Court is well considered.

12. The counsel appearing for either side cited earlier pronouncements with respect to the election of the alternative reliefs prayed for. It is seen that the plaintiff had claimed co-ownership in respect of the second schedule common passage and in the alternative had prayed for right of easement by necessity over second schedule property.

13. Though the trial Court upheld the plaintiffs claim that the plaintiff and the defendants are entitled to the second schedule as common passage, the first Appellate Court reversed the same. It is fairly slated that excepting the second schedule, the plaintiff has no alternative pathway passage to reach his property.

14. It is further admitted by both parties that the properties owned by the plaintiff as well as defendant were originally owned by a common owner from whom the vendor of the plaintiff and defendant purchased their respective property. It is also to be noted that in Ex. A1 dated 28.11.1975, it has been provided that the plaintiff is entitled to use the second schedule property as a passage. Ex A1 is dated 28.11.1975

15. It is further admitted that the second schedule has been kept as a passage hitherto and it is also admitted by either side that the properties presently owned by the plaintiff and the defendant was owned by common owner, Parvathi Pandaram from whom the plaintiff and the defendant purchased their respective portion. As such, it is clear that the properties were originally owned by one common owner and the plaintiff and the defendant had purchased their respective portion..

16. Ex. A1 provides for a right of passage, though it is dated 28.11.1975 Based upon this, Mr. Damodharan, learned counsel for the appellant claims that the plaintiff is entitled to use the second schedule by way of easement of necessity. It is also admitted that excepting plaint second schedule property, there is no other way for the plaintiff to reach his land.

17. In Ex. A1, it has been specifically provided that the suit second schedule shall be used as pathway. Items 2, 3 & 4 in Ex. A1 are relevant and they read as hereunder:—

18. PW1 had deposed that excepting the suit passage, he had no other passage to reach his lands. It is not possible to reach the plaintiffs property except through the suit second schedule property. DW1 though admits that the second schedule is a pathway had deposed that the plaintiff had got other access. But DW 1 had not stated which is the other access or alternate pathway available to the plaintiff.

19. Thus, it is evident that there is no other pathway excepting the second schedule property as deposed by PW1 and as provided in Ex A1, Ex. A1 which is dated 28.11.1975 had not been challenged by the defendant and the plaintiff is a party to the said document, Ex. A1 and therefore, he could speak about the contents of the document.

20. The first Appellate Court held that Ex-A1 had not been established. This approach of the first Appellate Court cannot be sustained as Ex-A1 has been admitted with the consent of either side and PW1 who is the purchaser under E&A1 had deposed about the contents of the document. Therefore, Ex. A1 is admissible and this Court holds that the contents of Ex. A1 had been proved

21. The view taken by the first Appellate Court in this respect cannot be sustained in law, as it runs counter to the decision of this Court in A.V.S. Perumal v. Vadivelu Asari (AIR 1986 Mad 341 = 99 L.W 561) The Division Bench held thus:—

“The argument of the learned counsel for the petitioner is that the principle of law laid down in Manicka Muda Jiw's case (1982) 95 L.W 297 (supra) is too wide and requires reconsideration. In any event, it is the contention of the learned counsel for the petitioner that the lower Appellate Court ought not to have allowed the appeal by setting aside the judgment and decree of the trial Court on the only ground that the documents marked in the trial Court by consent could not be relied on as there was no oral evidence to prove the contents of the documents exhibited. The learned counsel contended that when documents were marked by consent not only there was no further need for a formal proof of the documents, but also it would amount to proof of whatever the documents contained. In support of his contention, he has relied on the following cases, Jainab Bibi Saheba v. Hyderalfy Sahib, reported in (1920ILR 43 Madras 609: (AIR 1920 Mad. 547) (FB), Latcnayya v. Seetaramayya reported in AIR 1925 Mad. 257, Narasayya v. Krishnamurthi reported in AIR 1928 Mad. 1255, P.C Purushothama Reddiar v. S. Perumalrespondent reported In AIR 1972 SC 608 Kanchanganga Co. Ltd. v. State, reported in AIR 1973 Cal 325 and Hamath v. Dhanoo Devi reported in AIR 1975 Cal. 98. Conteading contra, the learned counsel for the respondent-plaintiff submitted that the lower Appellate Court is right in applying the law laid down in Manicka Mudaliar's case supra, and allowing the application as welf as the appeal. According to the teamed counsel even though documents were marked in the trial Court by consent, that will not absolve the respective parties from proving the contents of the documents so exhibited. According to him, the consent given for marking the documents will only absolve the parties from formally proving the documents and nothing beyond that. In support of his submission, the learned counsel relied on the following judgments. Palaniappa Chettiar v. Bombay Life Assurance Com. Ltd., reported in 1947 2 Mad. U 535: AIR 1948 Mad. 298). Sait Tarjee Khimchand v. Yelamarti Satyam reported in AIR 1971 SC 1865 and Karuppa and Thevax v. Rajagopala Thevar reported in (1974) 2 Mad. U 260: (AIR 1975 Mad. 257).

5. After going through the various citations given by the learned counsel on both sides, we find that both the learned counsel have put their respective propositions in the extremes. The correct proposition of law, we find, has already been laid down atleast by two Division Bench Judgments of this Court to which we will make reference immediately. Therefore, the issue is not res integra. In our view, the principle of law laid down in Manicka Mudaliar's case (1982) 95 LW 297) “is not wholly erroneous, but requires modification in the light of the earlier Division Bench, judgment of this Court. In our view, it is unnecessary for us to refer to the views of other High Courts on this matter as the Division Bench, judgments of this Court are binding on us and we are also in respectful agreement with those two Division Bench judgments. The principle laid down by the Supreme Court in AIR 1972 SC 608 supra relied on by the learned-counsel for the petitioner, has been correctly appreciated in one of the Division Bench judgments of this Court. We do not, therefore, propose to discuss the matter elaborately except to refer to relevant passages from the two Division Bench judgment of this Covin, which succinctly lay the proposition of law.

In Manicka Mudaliar's case (1982) 95 LW 297) supra, the learned Judge has held as follows:—

“By merely making the documents toy consent, the Court is not obliged to look into the contents unless those documents are formally proved in accordance with the provisions of the Indian Evidence Act.

(Emphasis supplied)”

We think, with respect to the learned Judge, the above proposition is too wide and needs modification. The correct position as found by the earlier Division Bench approved by the later Division Bench is as follows-

“Permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved”.

The learned single Judge, in Manicka Mudaliar's case, supra, has taken the view that formal proof also is required notwithstanding the fact that the document was marked by consent. To that extent, the learned single Judge with respect is not right”.

22. The said document Ex. A1 has been proved by PW1, who is the plaintiff and a party to the said document. Hence the view of the first Appellate Court that the contents of the document Ex. A1 had not been proved cannot be sustained.

23. On a consideration of the oral evidence as well as the findings of the trial Court and the document Ex A1, it follows that the second schedule passage is an easement of necessity for the plaintiff to reach his lands. This aspect is not being challenged seriously though Mr. Peppin Fernando contended that an alternate pathway is available. This Court holds that the suit property is the only pathway through which the plaintiff could reach his property.

24. Mr. Peppin Fernando relied upon the decision reported in Purani Dhirajlal Amritlal v. Mehta Sankleshwar Aditram and another (AIR 1976 Gujarat 180) as well as in E. Elwnalai Chetty v. Naina Mudali and others (AIR 1987 Madras 102) = (1986) 99 L.W 703 and contended that the claim of title as a co-owner in respect of the second schedule and easementary right are distinct and being contradictory, the plaintiff having failed to establish his title, cannot turn round and ask for the alternate reliefs on the basis of easement of necessity.

25. Mr. Peppin Fernando also relied upon the decision of the Supreme Court in Chapsibhai Dhanjubhai Dand v. Purushotham (AIR 1971 SC 1878) and contended that to establish a prescriptive acquisition of right of easement one must prove that he was in exercise of such a right on a property treating it as someone else's property.

26. Per contra Mr. Damodharan, learned counsel for the appellant relied upon the decision reported in Palaniswami Naicket v. Chinnaswami Naicker (1968 (1) MLJ 562) = 81 LW. 95 S.N and contended that at any time, it is open to the plaintiff to elect any one of the alternative reliefs claimed and merely because the plaintiff had failed to establish his co-ownership his claim of easementary right by necessity cannot be rejected.

27. The scope of putting forward inconsistent pleas and granting of alternative relief were considered by the Apex Court in Anmdhati Mishra v. Sri Ram Charilra Pandey (1994 (2) SCC 29) and it has been held thus:—

“It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when Second Appeal is pending. Equally when it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisities are that the delay in making the application; the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is founded on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted”.

28. In Rayachand Vanmalidas v. Manoklal Mansukhbhai (AIR 1946 Bombay 266) the Full Bench of the Bombay High Court held-that it is open to a party in a litigation to raise inconsistent pleas of ownership and easement in the alternative in-the same suit and an election to prove one of the two alternative reliefs may be made when evidence is to be led or even after the evidence is over. The Full Bench held thus:—

“It is open to a party in a litigation to raise inconsistent pleas of ownership and easement in the alternative in the same suit and an election to prove one of the two alternative pleas may be made when evidence is to be Jed or even after the evidence is over. The party may contend that though the evidence is not satisfactory to establish ownership, it is sufficient to prove the right of easement. If he relies on the plea of ownership and leads evidence on that point and fails in doing so, and if he thereafter relies on the same evidence for easement rights, he will be met with a serious difficulty in establishing-a claim of easement because of the plea of ownership for which he led evidence and failed. However, it does not necessarily follow that if a person takes inconsistent pleas he should not be allowed to lead evidence on those pleas. A party, if he chooses, is entitled to lead evidence on both the alternative pleas and it is for the Court to decide whether he is entitled to succeed on either of the pleas. Certainly he cannot succeed on both”.

29. In Purani Dhirajlal Amritlal v. Mehta Sankieshwar Aditram and another (AIR 1976 Gujarat 180) relied upon by Mr. Peppin Fernando, it has been held that inconsistent pleas of ownership and easement in alternative can be taken by electing to prove one of the two pleas. In AIR 1976 Gujarat 180, the Full Bench Judgment of the Bombay High Court in AIR 1946 Bombay 266 (FB) had been followed. The Division Bench of the Gujarat High Court held thus:—

“As stated even by the Bombay High Court in the aforesaid Full Bench decision, inconsistent pleadings can be taken. Our learned Brother AD. Desai, J., has held that the plaint in the moffusil should be construed liberally, and on perusing paras 5 and 6 of the plaint, he has reached the conclusion that there was such implicit pleading regarding the right of easement claimed on the basis of immemorial user. It is, therefore, not open to us in this Second Appeal to take any contrary view in that behalf. We, therefore, assume that such a right has been pleaded. Such alternative inconsistent pleas can be taken. But the question is, whether such a claim is proved. For the proof of it, requisite animus is a necessary ingredient The learned Appellate Judge has stated that even in the evidence, plaintiff has claimed ownership over the suit Chhindi. It is significant to note that he has nowhere stated any facts which would snow that he acknowledged the onwership of deceased defendant over the suit Chhindi. On the contrary, he asserted his ownership over the suit Chhindi even in his evidence. It is, therefore, difficult, in the circumstances of the case and on the evidence led in the instant case, to reach the conclusion that there was requisite animus which is a necessary ingredient for the proof of the claim in question.

We have already stated earlier that in the instant case, election was not made by the plaintiff-appellant at the time the evidence was to be led. He did not make any such election even, subsequent to it. He all along, upto the last, claimed ownership over the suit Chhindi. Even in the appeal he tried to take up that contention. He was not allowed to take up that contention as he had not filed any appeal or cross objections again the finding recorded against him by the trial Court in this behalf. This is his conduct in this litigation”.

30. Mr. Peppin Fernando, relied upon the judgment in E. Elimalaichetty v. Naina Mudali and others (AIR 1987 Madras 102 == 99 L.W 703) and contended that the plaintiffs claim of title and casementary right are distinct and contradictory and having failed in his attempt of claiming co-ownership to the strip of land, the plaintiff is not entitled to put forward the: plea of easement by necessity.

31. In the said case, it had been held that conception of easementary right cannot go with the title as both are contradictory to each other. In the present case, what has been claimed by the plaintiff is not exclusive title to the second schedule but a right of common passage over the second schedule. Even if the plaintiff fails in his attempt to prove the common right over the second schedule as a passage, in my considered view, he can always put forward the plea of easement by necessity or prescription over the same second schedule, which is passage as provided in Ex A1 itself.

32. The decision in Elumalaichetty v. Naina Mudali (supra) is clearly distinguishable on the facts of the present case as in the present case, the plaintiff as a co-owner claimed a right of common passage over the second schedule and in the alternative he has claimed an easementary right by necessity as he has no other alternative relief. The two pleas cannot be said to be contradictory to each other, as the right that has been claimed either as a co-owner or common property owned by both parties or on the ground of easement by necessity, it is only a passage or to use the second schedule for entering or re-entering or ingress or engress alone as the second schedule property is a mere passage and it is not as if the plaintiff had claimed exclusive title to the second schedule property.

33. In Subba Nayakkar v. Akkammal (AIR 29) 1942 Madras 892 = 55L.W 142) while following the decision in Subba Rao v. Lakshmana Rao (AIR 1926 Madras 728) this Court held that the Civil Procedure Code permits inconsistent pleas being raised and the claim both ownership and in the alternative easement in regard to the same plot or property could very well be put forward. It has been held thus:—

“When a person claims a right in a property by way of an easement, he is claiming a much lesser right than ownership. If the right of easement is acquired, the dominant owner becomes entitled to certain rights only and the remaining rights still continue to vest in the servient owner. What prevents the dominent owner from acquiring the rest of the rights by adverse possession for instance, I am unable to follow. Nor can I see why should his attempt to claim the rest of the rights nec vi nee clam nee precario (which may also involve the assertion that he is holding them in his own right) necessarily lead one to conclude that the rights previously acquired have, by his subsequent conduct in attempting to acquire more, came to an end. Whatever was already acquired would remain his what remainded to be acquired may not be his, at any time. But an attempt to get the remaining rights cannot be held to extinguish the rights which had been already acquired. These could only be lost by surrender, abandonment, etc., and the attempt to get more is not one of the recognised methods by which the rights already acquired, could cease to exist. I must therefore, hold that a mere claim to hold the property as an owner cannot result in the plantiff being deprived of her existing rights.”

34. In Pakmiswami Naicker v. Chinnaswami Naicket (1968(1) MLJ 582), Ramaprasada Kao, J. as he then was, held that the alternative plea, even if it could be presumed to have been pleaded in the instant case, it is permissible for the plantiff to press any one of them at the appropriate time. T. Ramaprasada Rao, J held thus:—

“A Full Bench of the Calcutta High Court, however, in Narendranath Barari V. Aboy Charon Chatopadhyaya (1907 I.L.R 34 Cal 51) took a contrary view, their Loardships are specifcally of the view that a suit for declaration that a ditch belonged to the plantiff for 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 plantiffs claimed in the alternative over the same plot of ground right (1) of ownership, (2) of easement. Respectfully 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 plantiff, is permissble provided the plantiff presses only one of them at the appropriate time. The plaintiff relied on the right of easement of way at all material times. In the view, therefore, already expressed by me that the plantiff has secured the right of easement by prescription, though not as an easement of necessity the plantiff is entitled to succeed in this case. The Second Appeal is therefore, dismissed, but in the circumstances of the case, there will be no order as to costs. No leave.”

35. In P.V Krishnaier and another v. Perumal Nadar (85 L.W 819) this Court held that when the plaintiff who had put forward a claim of title to the lane and ‘who had failed to establish the same cannot seek to establish the right of easement over the same on the basis that he exercised such a right over a statutory period with the consciousness that he is exercising that right in the defendant's property.

Ramanujam, J, as he then was, while following the decision of Ramaprasada Rao, J. in Palaniswami Naicker v. Chinnaswami Naicker (Supra) held thus:—

Therefore, 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 the land CDEF, he cannot be said to have had the requisite animus of enjoying the easement in the defendant's land as he had always been conscious of his ownership of the land.”

36. The learned counsel for the appellant sought to distiguish the above pronouncement of Ramanujam, J. as what has been claimed in the present suit is a common passage or in the alternative easement by necessity and therefore, the said decision cannot be pressed into service against the plaintiff. As rightly contended by Mr. Damodaran the learned counsel for the appellant, the plaintiff had claimed that suit second schedule property as a common passage owned jointly by the plaintiff and the defendant and in the alternative had claimed right of easement by necessity. Therefore, it follows that it is only an alternative basis of the suit claim and they are not mutually inconsistent pleas as sought to be contended by Mr. Peppin Fernando.

37. It is to be pointed out that no other alternate way has been proved by the defendant to reach the plaintiff's property and the plaintiff has no other alternate way except to use the second schedule property to reach his property, as it is the only access. The plaintiff will hot be entitled to press the claim of easement by necessity if the defendant established an alternative passage and not otherwise..

38. Mr. Peppin Fernando, learned counsel for the respondent contended that the plaintiff had no necessary animus to use the second schedule property as passage or pathway and therefore, he cannot claim the suit passage bv prescription. I am unable to agree with this contention. To establish the prescriptive right, one must prove that he was exercising that right on a property treating it as someone else's property, as has been held in AIR 1971 SC 1878 (Chapsibhai Dhanjibhai Danad v. Purushottam.).

39. This is not the case here. In this case, the plaintiff had claimed alternative relief that he is entitled to use the second schedule as an easement of necessity as the plaintiff had no other passage to reach his land. Easement of necessity, as already pointed out has been proved by the plaintiff and it has not been established by the defendant that the plaintiff has any other alternate passage or access to reach his lands.

40. Mr. Peppin Fernando, relied upon a passage in Sanjiva Row's Commentaries on Easements and Licences’ and contended the suit is liable to be dismissed because the plaintiffs plea is inconsistent and the plaintiff had not elected the plea. The passage relied upon by Mr. Peppin Fernando far from supporting him positively advances the plaintiff's claim and the view of this Court. The relevant passage reads thus:—

“No plaintiff can be allowed to take the impossible position of being the owner of and of having an simultaneous right of easement over the same land, [nconsistent claims may, therefore, under the peculiar circumstances, be explained and accounted for. The parties were close neighbours. It was impossible for the plaintiff not to have known that he was not the owner of the property in dispute. The reliefs based upon ownership and upon the right of easement were lot claimed simultaneous but in the alternative.

This view is supported in principle by a Full 3ench decision of the Madras High Court in Subba Rao v. Lakshmana Rao (LLR 49 Mad. 820) in which he facts were somewhat different.”

41. On a consideration of all the case laws and the pleadings as well as the oral and documentary evidence, this Court answers the question of law framed at the time of admission n favour of the appellant and against the espondent. The judgment of the First appellate Court is set aside and the judgment and decree)f the trial court is modified. This Court holds hat the plaintiff is entitled to the right of :asement of necessity claimed by the plaintiff and he is entitled to the reliefs of declaration hat the plaintiff is entitled to use the second schedule as passage to reach his property and consequential relief of mandatory injunction as well as the permanent injunction. The defendant is granted two months time to remove the construction/obstruction put up by him in the second schedule property, failing which, it is open to the plaintiff to remove the construction put up by the defendant on the second schedule property by execution petition.

42. The Second Appeal is allowed and there will be a decree in O.S No. 350 of 1980 in favour of the plaintiff declaring

i) that the plaintiff is entitled to use the second schedule as a passage to reach his property.

ii) the plaintiff is entitled to the relief of mandatory injuction directing the defendant to remove the construction/obstruction put up in the second schedule property.

iii) the plaintiff is entitled to the relief of permanent injuction forbearing the defendant and his men or agents or any one in any manner interfering with the plaintiff's use of the second schedule properly v.

iv) and both parties shall bear their respective costs throughout.

RR/VCS