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Chinnasami Goundan . v. A.S Balasundara Mudaliar And Others

Madras High Court

Apr 9, 1934

Judgment

Subsequent
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Concise Analytical Summary of the Opinion

Factual and Procedural Background

The plaintiff (appellant) is the current owner of Survey No. 6/2 in Keezha Ami. He sued to restrain defendants 1 and 2 — who claimed to be trustees of a neighbouring Pillayar temple — from interfering with his use of a pathway across Survey No. 1 (marked B in the plaint plan) that led from his smithy in S. No. 6/2 to a public road.

In the plaint the plaintiff alleged that defendants 1 and 2 had no right or interest in S. No. 1 and that he had a right to use the pathway either as an easement of necessity, by prescription, or by mamul (custom). Defendants 1 and 2 pleaded that S. No. 1 belonged to the Pillayar temple (of which they were trustees) and denied that the plaintiff had acquired any right to use the pathway by prescription, mamul, or easement of necessity.

The Government was added as the 3rd defendant. The Government's written statement asserted: “The pathway concerned in the suit vests in the Taluk Board, Vellore. This defendant is not interested in the present suit and there is no cause of action against him.”

Procedurally, the dispute reached the court on second appeal. The lower courts had produced differing findings: the first Court (District Munsif) found for the plaintiff on some grounds, while the lower appellate Court found against the plaintiff on several points (including denying easement of necessity and, in its view, rejecting the plaintiff's claim of sufficient prescriptive user). The present opinion addresses the second appeal and resolves whether the plaintiff's asserted rights prevail against the defendants/trustees and, implicitly, how Government ownership or interests affect prescription periods under the Easements Act.

Legal Issues Presented

Whether the plaintiff has a right to use the pathway across Survey No. 1 as an easement of necessity, by prescription (or by mamul), against defendants 1 and 2.
Whether defendants 1 and 2, as temple trustees (given the characterisation of S. No. 1 in registers and evidence), can lawfully interfere with the plaintiff's use of the pathway even if the temple is not the registered owner.
What is the effect of Government ownership or interest in Survey No. 1 on the period required to acquire a prescriptive easement (i.e., whether S. 15 of the Easements Act requires 60 years' user when the land “belongs to Government” and how that applies where a limited interest or occupation exists).
Whether a limited period of user (e.g., 20 years) can create a prescriptive right enforceable against private persons holding a limited interest (such as the temple trustees) even if it would not suffice against the Government.

Arguments of the Parties

Appellant (Plaintiff)

Asserted a personal right to use the pathway across S. No. 1 from his smithy to the public road.
Claimed the right by one or more of: easement of necessity, prescription (including reliance on 20 years' user), or mamul (custom).
Relied on evidence (including Ex. A and the deposition of P.W.1) to show long continued user.

Defendants 1 & 2 (Temple Trustees) — as presented in their pleadings and by their counsel Mr. Krishnaswami Ayyar

Pleaded that S. No. 1 belonged to the Pillayar temple and denied that the plaintiff had acquired any right by prescription, mamul, or easement of necessity.
Argued (through counsel) that the appellate Court had held or could be read to hold that the temple is not the owner and that the land belongs to Government, and contended that if Government is the owner, the plaintiff would be a licensee from Government or otherwise authorised by Government to use the pathway (a contention the court did not accept).
Counsel argued that even if the temple is not the owner, it should be treated at best as a licensee and not as having an interest sufficient to justify trustees interfering with plaintiff's user (the court rejected this submission given the evidence about temple puramboke).
Counsel insisted that because defendants had pleaded ownership by the temple and that was found against them, they should not be permitted to shift to a different basis for obstructing the plaintiff — the court held this did not prejudice the plaintiff because the issue as framed allowed consideration of the trustees' capacity to obstruct irrespective of formal ownership findings.

Government (3rd Defendant) — written statement

The written statement stated: “The pathway concerned in the suit vests in the Taluk Board, Vellore. This defendant is not interested in the present suit and there is no cause of action against him.”
The court explained that this statement was not to be read as creating a licence in favour of the plaintiff; it is a statement of the Government's view as to vesting in the Taluk Board, not a litigated or decided fact in this suit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rudrappa Nayak v. Dasan (opinion of Mr. Justice Walsh)	That lands entered in the Settlement Register for particular public uses (e.g., cattle-stand) do not prevent the Government from assigning portions thereof and that revenue officers are the proper judges of such assignments (i.e., Government can allocate parts of such lands subject to administrative considerations).	The court observed the Rudrappa principle but held it did not materially affect the decision in the present case: the Government's indifference as indicated in its written statement meant the Rudrappa decision did not bear on the specific question before the court.
Koyyammu v. Kuttiammoo (judgments of Abdur Rahim and Phillips JJ.)	Contains divergent views on whether an easement may be acquired by prescription for a limited term or against holders of limited rights (discussion of possibility of acquiring easement to the extent a grant could be made within terms of S. 8).	The court noted these divergent views and declined to adopt a definitive position. It remarked that even on Phillips J.'s reasoning (favouring acquisition to extent a grant would be possible), no such grant by the temple would be possible in the present case given the nature of the temple's interest in S. No. 1; therefore the Koyyammu debate did not assist the appellant.

Court's Reasoning and Analysis

The court proceeded through a sequence of findings and legal applications shown in the text:

Government statement: The Government's written statement that the pathway "vests in the Taluk Board, Vellore" was not to be interpreted as creating a licence for the plaintiff nor as disposing of the factual issues between the private parties. The court emphasised that the plaintiff asserted a personal right, not merely a public right to a public pathway.
Character of defendants' interest in S. No. 1: Although the appellate Court had held the temple was not the owner, other evidence (Diglott Register entry describing S. No. 1 as "puramboke" with a remark "temple", and the Deputy Tahsildar's evidence that the Government has a right to enter temple porambokes when not used for temple benefit) supported the conclusion that the temple had a significant relation to the land. The District Munsif also treated the land as part of the temple land. The consequence was that the trustees (defendants 1 and 2) could not be treated as mere strangers in relation to S. No. 1.
Consequence for interference: Because the trustees were not mere strangers, they could have a right to obstruct someone unlawfully making use of the site as a pathway. The court therefore rejected the appellant's contention that negation of the temple's ownership automatically made the trustees incapable of interfering.
On the relevance of documents and shifting pleaded grounds: The court considered but declined to insist on production of certain Government documents summoned by the plaintiff; it accepted the Subordinate Judge's finding that ownership was not in the temple and held that the way the case was pleaded and issues framed did not unfairly prevent the plaintiff from meeting any alternative basis for the trustees' interference.
Prescription and the Easements Act — central statutory analysis: The court engaged the statutory regime. It addressed whether the plaintiff's alleged 20 years' user (as compared to the 60 years specified) could give him a prescriptive easement enforceable against the trustees. The court highlighted S. 15 of the Easements Act, which provides that when the property over which a right is claimed under S. 15 belongs to Government, "20 years" must be read as "60 years".
Construction of "belongs" in S. 15: The court rejected the appellant's contention that "belongs" should be restricted to cases where both possession and ownership remained with Government and should not apply where a person with a limited right occupied the land. The court considered legislative context (including departure from English law and reference to Art. 149 of the Limitation Act) and concluded the provision requiring 60 years' user applies to property belonging to Government even where a limited owner occupies it.
Interaction with S. 4 and the possibility of tacking occupier enjoyment: While the court acknowledged S. 4 allows an "occupier" (not only the owner) to acquire an easement and that enjoyment as occupier could be tacked on to enjoyment as owner if uninterrupted, this did not rescue the appellant because S. 15's requirement of 60 years applied to land belonging to Government and thus would defeat a claim based on only 20 years' user when measured for purposes of S. 15.
On the Koyyammu debate (prescriptive acquisition against limited owners): Even accepting the more favourable view (Phillips J.) that acquisition by prescription might be possible to the extent a grant could be made under S. 8, the court held no such grant by the temple would be possible here given the temple's particular nature of interest. Therefore, that line of authority did not aid the appellant.
Findings on factual user: The court noted conflicting findings between the first Court (which found in favour of the plaintiff on the length of user) and the lower appellate Court (which excluded certain earlier user as prior to 1907 and decided against the plaintiff). The court said it was not necessary to finally resolve whether the plaintiff proved 20 years' user because S. 15 would in any event require 60 years for land belonging to Government and therefore the plaintiff's 20 years would not suffice to prevent the trustees from interfering.

Holding and Implications

Holding: The court's final decision was that the second appeal fails and is dismissed with costs. The opinion concludes with "Appeal dismissed."

Implications and direct effects:

The plaintiff's claim to have an easement of necessity was negatived by both lower courts and not revived on appeal.
Even if the plaintiff had established approximately 20 years' user, that period would not create a prescriptive easement enforceable against interests in land that "belong to Government" under S. 15 of the Easements Act, which requires 60 years' user in such circumstances.
The trustees (defendants 1 and 2) were not to be treated as mere strangers to S. No. 1 for purposes of determining whether they could lawfully obstruct the plaintiff's use; evidence supported the view they had a sufficient relation to the land to justify interference with unlawful use.
The decision was a resolution of the parties' rights in this litigation and did not purport to lay down a new broad precedent; the court expressly declined to resolve certain larger doctrinal disputes (for example, choosing between the divergent views in Koyyammu) because the statutory requirement in S. 15 disposed of the appeal on the facts before it.

Note: This summary is prepared strictly from the provided opinion text and does not add facts or inferences beyond that text.

Show all summary ...

The plaintiff, who is the appellant, is at present the owner of S. No. 6/2 in the village of Keezha Ami and he sued to restrain defendants 1 and 2, who claimed to be the trustees of a neighbouring Pillayar temple, from interfering with the plaintiff's use of a pathway across S. No. 1 (marked B in the plaint plan) leading from his smithy in S. No. 6/2 to a public road. The averment in the plaint was that the defendants 1 and 2 had no right to or interest in S. No. 1 and that the plaintiff had a right to use the pathway as an easement of necessity or by prescription or by mamul. Defendants 1 and 2 pleaded that S. No. 1 belonged to the Pillayar temple of which they were the trustees and they denied that the plaintiff had acquired any right to use the pathway whether by prescription or by mamul or as an easement of necessity. The Government was added as the 3rd defendant and as Mr. Krishnaswami Ayyar had laid great stress upon the attitude taken by the Government in this litigation it is as well to set out what exactly the Government's written statement states. The Government said:—

“The pathway concerned in the suit vests in the Taluk Board, Vellore. This defendant is not interested in the present suit and there is no cause of action against him.”

I am unable to understand this statement of the Government as justifying the argument that the plaintiff is a licensee from the Government in respect of the user of this pathway or that the Government has authorised the plaintiff in his individual capacity to use this pathway. The view of the Government that it is vested in the Taluk Board of Vellore may be right or may not be right. That has not been put in issue and tried. But in this litigation the plaintiff is asserting his personal right and not a right as one of the public entitled to use a public pathway.

If I understand Mr. Krishnaswami Ayyar's argument right, his main contention was to the following effect:—the appellate Court has held that the temple is not the owner of S. No. 1 and it continues to belong to the Government and the defendants 1 and 2 as representing the temple have no right to interfere with the plaintiff walking across S. No. 1, so long as the Government who is the owner of that plot, does not choose to object. This contention overlooks what is stated in another portion of the lower appellate Court's judgment (in paragraph 12) where the learned Subordinate Judge says

“It must be observed that the use of the servient tenement has been allowed by its real owner, the Government, in favour of the temple. It follows that the persons responsible for the management of the temple are in possession of the property. They have therefore the right to obstruct any one from unlawfully making use of the site in question as a pathway.”

It may be a question whether a mere stranger can obstruct another person in the exercise of even what may be called an inchoate right of easement. But on the evidence in the case I am unable to accept the position that defendants 1 and 2 are mere strangers so far as S. No. 1 is concerned. In the Diglott Register S. No. 1 is no doubt described as “puramboke” but in the remarks column against that number there is a note “temple”. The exact position is made clear by the statement of the Deputy Tahsildar examined as P. W. 1 that in the case of temple porambokes the Government has a right to enter upon the land when it is not used for the purposes or benefit of the temple. The District Munsif, though he decided in favour of the plaintiff on other grounds, also takes the view that the land over which the pathway is claimed should be deemed to form a portion of the temple land—(see para 9). It is not necessary for the purpose of the present case to define the exact nature of the interest that the temple possesses in S. No. 1. All that I am concerned to point out is that the case cannot be compared to that of a mere stranger interfering with the Use of a right of way by a person who is in the process of acquiring it by a course of prescriptive enjoyment.

Mr. Krishnaswami Ayyar referred in this connection to a case in Rudrappa Nayak v. Dasan (1), where it has been held by Mr. Justice Walsh that the mere fact that certain lands are entered in the Settlement Register as cattle-stand does not stand in the way of the Government assigning any portion thereof to somebody and that the revenue officers are the proper judges as to whether such assignment of a portion could or could not be made without inconveniencing the right of other villagers to have sufficient land kept apart for their use as cattle-stand. I do not see that there is any occasion to dispute that proposition in the present case. If the plaintiff can be said to claim under Government by reason of the Government having allotted S. No. 1 to him, this question may arise. All that the plaintiff can now say is that as indicated in the written statement of the Government Government is indifferent in the matter. In this view the decision in Rudrappa Nayak v. Dasan , does not bear on the determination of the question before me. Mr. Krishnaswami Ayyar further argued that though the temple may not be in the position of a stranger it is no better than a ‘licensee’ and cannot be said to possess any such interest in the land (S. No. 1) as will justify its trustees in interfering with the plaintiff's user of the way. In view of the explanation given by P. W. 1 as to the nature of the land described as ‘Temple puramboke’ I am not able to accept the contention that the temple is no more than a licensee in respect of S. No. 1. Mr. Krishnaswami Ayyar next drew my attention to the circumstance adverted to in paragraph 14 of the Munsif's judgment that the Government declined to produce certain documents summoned for on the plaintiff's side and he contended that if those documents are before the Court, it may be possible to come to a more definite conclusion as to the nature of the interest of the temple in S. No. 1. So far as I am able to gather from paragraph 14, these documents were summoned for the purpose of showing that the temple authorities themselves applied for assignment to them of S. No. 1 on darkhast and it was hoped to show therefrom that the story put forward in the written statement by the trustees that the temple was already owner of S. No. 1, could not be true. For the purpose of this decision I am accepting the finding of the Subordinate Judge that the ownership of S. No. 1 was not in the temple and my conclusion is merely based on the ground that it will not follow therefrom on the admitted facts that the temple authorities are in no better position than mere strangers. In this view it does not seem to me necessary at this stage to insist on the production of the papers so summoned for or adjourn the case for that purpose.

Mr. Krishnaswami Ayyar insisted that as the only case put forward by defendants 1 and 2 was that the temple was owner of S. No. 1 and as that has been found against, it will not be proper to allow the trustees to shift their ground and justify the obstruction on any other basis. I am unable to see that this difference in the view point has in any manner prejudiced the plaintiff's case. The plaintiff came forward with the story that he had acquired a right of easement by prescription or custom—I leave alone the claim of easement of necessity as both the Courts have negatived it. It is only incidentally that the further question arises whether defendants 1 and 2 have got a right to interfere with the plaintiff in the exercise of that right or of an inchoate right of that kind. So long as Ex. A, which is the first document on the plaintiff's side, and the deposition of P.W 1, who is the first witness examined on the plaintiff's side, themselves show that though the temple was not the owner, it had such a relation to the suit land as to justify the conclusion that the trustees were not strangers, I do not see that the negation of the temple's claim of ownership can entitle the plaintiff to say that he will be prejudiced, unless he is given a further opportunity to put forward anything in answer to the new basis. As I pointed out in the course of the argument, the issue in the case was framed quite generally and I have not been able to see what matter has been kept back by reason of the way in which the defendants' case was put forward.

The other point for consideration is, whether the plaintiff can claim that, though for want of 60 years' user he has not acquired an easement as against the Government, he has by reason of 20 years' user acquired a limited right which is sufficient to prevail as against any interest which private persons like defendants 1 and 2 may possess in S. No. 1. The arguments pro and con, as to the possibility of acquiring by prescription and easement for a limited term or one available against the holder of a limited interest but not against the owner in fee, have been set forth in the judgments of Abdur Rahim and Phillips JJ., in Koyyammu v. Kuttiammoo . It is not necessary for me in this case to say which of those divergent views I should be prepared to adopt, because even according to the reasoning of Phillips J., who was in favour of the possibility of such acquisition the acquisition is possible only to the extent to which a grant may be possible within the terms of S. 8. In this case no such grant by the temple will be possible having regard to the nature of the interest possessed by the temple in S. No. 1 as above explained. Mr. Krishnaswami Ayyar however contends that the test suggested in the judgment of Phillips J., ought not to be followed, that there is no necessary connection between the acquisition of an easement by grant and the possibility of its being acquired by prescription and that the test of alienability may create serious difficulties in the way of acquisition of easement in respect of easement in land in the possession of limited owners like widows, trustees etc. I do not pursue this matter further because there is another difficulty in the plaintiff's way in the present case. S. 15 of the Easements Act provides that when the property over which a right is claimed under this section belongs to Government, this section shall be read as if for the words “20 years” the words “60 years” were substituted. I am unable to accept the appellant's contention that the word ‘belongs’ in this section should be restricted to cases where possession and ownership continue to remain with the Government and the clause can have no application to cases where any person with a limited right is in occupation of land belonging to Government. Whether the object of this provision was merely to free Government from the restriction imposed by S. 16 that the full owner or reversioner can exclude the period of enjoyment had during the time that the servient tenement was in the possession of the limited owner only if such owner or reversioner sues within three years of the termination of the limited interest, can only be a matter of speculation. But when it is remembered that the Indian Legislation departed from the general rule of the English law that no right can be acquired against the Grown merely by lapse of time, I will not be justified in restricting the scope of the provision which insists on a period of 60 years' user not merely when the easement is claimed as against the Government (cf. the language of Art. 149 of the Limitation Act) but over any property belonging to Government.

In this view it is unnecessary for me to give a final opinion upon the question whether the plaintiff has proved even 20 years' user within the meaning of S. 15. The first Court found in his favour upon that point but the appellate Court in paragraphs 9 and 10 of its judgment decided even this question against the plaintiff. I must observe that the discussion in paragraphs 9 and 10 does not sufficiently keep apart the possibility of the easement being acquired against the Government and the possibility of its being acquired as against the temple. The lower appellate Court has not stated whether or not it accepts the finding that the plaintiff has in fact been going from the road to his smithy on Survey No. 62 for more than 30 years before suit. The 1st Court says that even some of the defendants' witnesses confirm that story. The lower appellate Court merely says that any user that the plaintiff may have had prior to 1907 when he became the owner of Survey No. 62 should be excluded. As at present advised I should not be prepared to accept that view, if it were necessary for me to decide that question. S. 4 of the Easements Act shows that not merely the ‘owner’ but even an ‘occupier’ may acquire an ‘easement’ and there is no prima facie reason why the enjoyment he had as an ‘occupier’ should not be tacked on to his enjoyment as ‘owner’ if there should be no interruption in his user. But in the view already stated that even by 20 years' user the plaintiff would not acquire prescriptive right as against property which belongs to Government, even to the extent of preventing defendants 1 and 2 from interfering with his user of that way, I do not wish to pursue this question. The second appeal fails and is dismissed with costs.

N. R. R.Appeal dismissed.