G. Rajasuria, J.@mdashThis Second appeal is focused by the legal heirs of the original plaintiff animadverting upon the judgment and decree dated 29.1.2004 passed by the Addl. District Judge, (Fast Track Court), Tirupattur, confirming the judgment and decree dated 29.10.1997 passed by the District Munsif Court, Tirupattur, in O.S. No. 1003 of 1985, which was one for declaration and permanent injunction concerning the suit property. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Compendiously and concisely the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(a) The original plaintiff-Samudi Gounder filed the suit for declaration and permanent injunction as against the defendants. The gist and kernel of the averments in the plaint would run thus:
(i) The plaintiff has got a private cart track, which starts from Bangalore-Vaniyambadi Highways Road and that the private cart way passes through the lands bearing S. Nos. 161, 180, 179 and 204 and from there the plaintiff has formed his own private cart track in the suit land in S. No. 205 belonging to him, so as to reach his residential house, situated in that survey Number, which is not meant for others to use. But the defendants are trying to lay claim over the ABCD portion marked in red colour in the plaint plan as though it is a cart track for their use.
(ii) The defendants are owning lands in S. No. 210 on the Eastern side of the plaintiff''s suit land. They cannot have such cart track through the said ABCD portion marked in S. No. 205 in the plaint plan.
Accordingly, the plaintiff would pray for the following reliefs:
a. to declare the plaintiffs right title and interest over the entire suit properties in favour of him.
b. to grant permanent injunction against the defendants, their agents, servants, henchmen etc., thereby restraining them from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit property.
c. to grant the cost of the suit.
(extracted as such)
(b) Per contra, the original defendants 1 to 4 filed the written statement, the warp and woof of the same would run thus:
(i) The said cart track which branches from Bangalore-Vaniyambadi Main Road does not stop with the plaintiff''s property in S. No. 205, but it proceeds further into the land of the defendants in S. No. 210 and S. No. 207, wherein the defendants'' houses are situated.
(ii) The defendants furnished a detailed sketch along with the written statement showing as to how the said cart track, which branches from Bangalore-Vaniyambadi Road passes through various survey numbers and reaches the land in S. Nos. 210 and 207.
(iii) The plaintiff, just before the filing of the suit demolished the said cart track which passes through the plaintiff''s land bearing S. No. 205 and filed the suit seeking injunction.
Accordingly, the defendants would pray for the dismissal of the suit.
(c) Whereupon issues were framed. Up went the trial, during which, the plaintiff examined himself as P.W. 1 and marked Exhibits A-1 to A5. The second defendant examined himself as D.W. 1 along with D.Ws. 2 to D.W. 7 and marked Exhibits B-1 to B4. Exhibits-C1 to C4 are marked as Court Courts.
(d) During the pendency of the suit, an Advocate Commissioner was appointed to visit the suit property and he submitted his two reports (Exhibits-C1 and C3) and sketches (C2 and C4)
(e) Ultimately, the trial Court passed the decree as under:
(f) Challenging and impugning the judgment and decree of the trial Court, the plaintiff preferred the appeal for nothing but to be dismissed by the first appellate Court confirming the judgment and decree of the trial Court.
3. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the plaintiff preferred this appeal on various grounds and also suggesting the various substantial questions of law.
4. My learned predecessor formulated the following substantial questions of law:
1. Whether the Courts below are right in granting decree for declaration and permanent injunction only to a portion of the suit land, when the plaintiff has filed documentary evidence, namely, revenue records to show that the entire extent of the land in S. No. 205 belonged to the plaintiff?
2. Whether the Courts below are right in holding that a cart track existed on the southern side of the suit property, when the Advocate Commissioner''s report clearly states that there is no trace of existence of a cart track?
3. Whether the Courts below are right in coming to the conclusion that there was a cart track, solely relying upon various deeds, pertaining to transaction between the family members of the plaintiff, wherein the family members have permitted each other to pass through the suit land on S. No. 205?
4. Whether the Courts below are right in holding that the defendants have right and necessity to use a portion of the suit land as cart track, when the defendants have not adduced any evidence to show that they have no alternative way to reach their lands?
5. Pending the second appeal C.M.P. No. 528 of 2012 was filed by the appellants to entertain the following documents:
1. The certified copy of the sale deed dated 16.3.1934;
2. The certified copy of the sale deed dated 12.11.1935;
3. The map showing land in survey number 206; and
4. The certified copy of the sale deed dated 26.4.1951.
6. Heard both.
7. All the substantial questions of law are taken together for discussion, as they are inter-woven and interlinked, interconnected and entwined with one another.
8. The learned counsel for the plaintiff would pyramid his arguments, which could succinctly and precisely be set out thus:
(i) Both the Courts below fell into error in not appreciating the Commissioner''s reports Exhibits-C1 and C3 and the Commissioner''s Sketches C2 and C4, relating to which, objections were not even filed by either of the parties.
(ii) The trial Court of its own accord held as though there was a well-trodden cart track in the land of the plaintiff and also misconstrued the recitals in Exhibits B-1 to B3. The right of easement is different from the right to claim a well-trodden common cart track in existence.
(iii) Here there is nothing to show up and point up that in any of those documents any common cart track is found referred to. However, the Courts below assumed and presumed as though those Exhibits B-1 to B3 referred to the existence of a common cart track over the land of the plaintiff.
Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgments and decrees of both the Courts and for the grant of injunction as prayed for in the suit.
9. Per contra, in a bid to slap down and torpedo, pulverise and oppugn the arguments as put forth on the side of the plaintiff, the learned Senior counsel for the defendants would advance her arguments, which could pithily and precisely be set out thus:
(i) Exhibits B-1 to B3 pellucidly and palpably recognise the right of the vendees therein to enjoy the right to use the cart track over the plaintiff''s land. When such is the clear factual position, the plaintiff is not expected to find fault with the judgments and decrees of both the Courts below.
(ii) The Commissioner''s report also would demonstrate and indicate that just before the filing of the suit, the then existed cart track over the plaintiff''s land was demolished by the plaintiff and in such a case, the Courts below were justified in discerning and understanding that there existed a cart track over the plaintiff''s land for defendants'' use.
(iii) The plaintiff was not justified in contending that the cart track branching from Bangalore to Vaniyambadi Road stopped at a particular level and it never proceeded further towards S. Nos. 210 and 207, wherein, the defendants land and the houses are situated.
(iv) The Commissioner in the blue coloured portion in his sketch referred to a foot path, which starts by having a width of a foot and half and it gets enlarged while reaching the S. No. 207. Over that area, a cart cannot pass and re-pass. Therefore, the Courts below correctly understood the case and decided the lis.
10. Alternis visibus, the learned Senior counsel also on understanding the mandates in the decree of the Courts below would argue that in as much as the ABCD portion in the plaint, which is referred to in the decree, is not clear, the matter might be remanded back to the first appellate Court, at least, so that, both sides could adduce additional evidence and whereupon a judgment with better clarity could be pronounced by the first appellate Court.
11. At this juncture, I would like to fumigate my mind with the maxim ''Sic utere tuo ut alienum non laedas''-Use your property so as not to damage another''s; so use your own as not to injure another''s property. "
12. It is just and necessary to distinguish and differentiate between the concept ''common path way'' and the ''mere right of easement to pass and re-pass over another man''s land''. This distinction has not been taken note of by the Courts below.
13. I would like to extract hereunder the relevant recitals from Exhibits B-1 to B3:
Certain recitals in Exhibit B-1 would run thus:
Certain recitals in Exhibit B-2 would run thus:
Certain recitals in Exhibit B-3 would run thus:
14. There is nothing to indicate that over the plaintiff''s land in S. No. 205, there existed a common cart track for the use of the defendants. To the risk of repetition and pleonasm, but without being tautologies, I would like to highlight and spotlight the fact that if there is any reference to a common cart track over the plaintiff''s land for the use of the defendants, then the matter would be entirely different.
15. Pellucidly and palpably, axiomatically and obviously it is clear that in none of those documents, there is any reference to any specific extent, which should be used as a cart track permanently on the plaintiff''s land for the use of the defendants. But surprisingly and unjustifiably the trial Court as well as the first appellate Court was carried away by the recitals in those deeds as though a common pathway or common cart track was contemplated in those deeds.
16. It is not uncommon to come across sale deeds wherein there would be specific recitals to the effect that the vendees under the sale deeds shall have the right to use the common path way or common cart track measuring such and such extent etc. But here, to that effect there is no recital in the documents referred to supra-In all those sale deeds-Exhibits B-1 to B3 referred to supra, agricultural lands alone were contemplated and the easementary right over the plaintiff''s land to take the cart through it, is found recited therein.
17. At this juncture, I would like to refer to the unreported judgment of this Court dated 1.10.2012 passed in S.A. No. 117 of 2004 Natesa Gounder v. I. Raja Goundra and Others.
18. A mere running of the eye over the above precedent would convey and indicate that so far agricultural lands are concerned, the owner of an agricultural land situated far away from the public road should necessarily pass through the lands of other persons and that it does not mean that the said owners of the land, who own land in between the public road and his interior neighbour''s agricultural land, should leave some specific extent of land for such interior neighbouring land owner to pass and re-pass and to take his cart or lorry, over his land. To put it in single syllabi words, the owner of the agricultural land, which is sandwiched by a public road and the agricultural land of his neighbour is not legally bound to permanently demarcate and keep vacant any specific extent in his own land for the said neighbour to pass and re-pass or take his cart through it.
19. If such a specific cart track is insisted upon, then agricultural operations would be in doldrums. It would be an entirely different issue if among the land owners in an agricultural area, certain extent is set apart permanently for such common cart track.
20. Here from a mere running of the eye over the averments in the written statement as well as the evidence of the defendants, one could discern that the defendants'' plea is precisely to the effect that there existed a permanent well-trodden common cart track. But to that effect there is no molecular or miniscule extent of evidence available on record.
21. The learned Senior counsel, by placing reliance on the oral evidence of the witnesses, would try to canvass her clients'' case that several witnesses on the defendants'' side deposed in unison that there existed a well-trodden common pathway over the land of the plaintiff and the plaintiff attempted to demolish it.
22. I recollect the maxim ''Ubijus ibi reme-dium ''-Where there is a right there is a remedy. The defendants'' claim relating to the claim of permanent common pathway over the plaintiff''s land should have the back up of documentary evidence, for which, they rely upon Exhibits B-1 to B3.
23. My discussion supra would demonstrate and display that even by phantasmagorical thoughts or by any stretch of imagination the recitals in Exhibits B-1 to B3 cannot be taken as the ones buttressing and fortifying the plea of the defendants that there existed a well-trodden permanent common cart track over the plaintiff''s land for the defendants'' use.
24. This distinction has not been taken note of by both the Courts below. The parties have not filed any objection to the Commissioner''s reports. The perusal of the Commissioner''s reports Exhibits-C1 and C3 and the sketches-Exhibits-C2 and C4 would reveal that both the reports are almost identical and one fact is clear that from Bangalore-Vaniyambadi Main Road, there exists a well defined cart track, which branches towards South in a zig-zag manner; to be more specific, the Bangalore-Vaniyambadi Road broadly proceeds from East to West and at a particular point, the common well-trodden cart track branches towards South and after some distance it turns towards East and after some distance it turns towards South once again and it reaches the plaintiff''s land and there it got stopped, as per the Commissioner''s sketch-Exhibits-C2 and C4.
25. The blue coloured foot path, as described by the Commissioner in his reports and sketches, branches from the said well-trodden common cart track towards East and at the beginning it has a width of a foot and a half and after some distance it gets enlarged and it proceeds further towards East and turns towards South, where the defendants land and houses are situated. As such, the Commissioner has given a picturesque description of the physical features.
26. The Commissioner also would in his sketches refer to a red coloured portion a few feet towards North away from the blue coloured portion in S. No. 205, so to say, in the land of the plaintiff.
27. The plaintiff contended that the defendants attempted to form a new cart track through that red coloured portion.
28. The learned Senior counsel for the defendants would narrate the facts to the effect that the blue coloured portion in fact did not start with a foot and a half width, but it originally started with a width of eight feet and that was demolished by the plaintiff and it was made to appear as though the blue coloured portion started only with a width of a foot and a half. But the Commissioner''s reports do not say anything about the demolition of any area adjacent to the blue coloured portion. Scarcely could it be stated that the Commissioner was drawn to such demolition adjacent to the blue coloured portion and that he failed to investigate and specify it in his report.
29. What I would like to stress upon is that, the defendants who plead for a permanent common cart track over the plaintiff''s land, should prove it. I am fully aware of the maxims:
(i) Affirmatis est probare-He who affirms must prove.
(ii) Affirmanti, non neganti incumbit pro-batio-The burden of proof lies upon him who affirms, not upon one who denies.
30. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.
31. But here the defendants have come forward with a specific case that they are having a right of common permanent cart track to an extent of eight feet width so as to reach their land as well as their houses. In such a case, the burden is on them to prove it. Mere oral evidence on the part of some witnesses referring generally to a common cart track would not serve the purpose.
32. Not to put too fine a point on it, the evidence on record would confine up a picture in my mind that undoubtedly and undeniably, incontrovertibly and unarguably there exists a permanent cart track, which branches from Bangalore-Vaniyambadi Main Road as narrated supra.
33. The core question is as to whether that permanent cart track passes through the plaintiffs land in S. No. 205 up to S. Nos. 210 and 207. When evidence is lacking and is sketchy and patchy in the case, only the negative could be presumed and not the affirmative, in view of the maxim ''In re dubia magis infitiatio quam affirmatio intelligenda''-In a doubtful matter, the negation is to be understood rather than the affirmation.
34. But both the Courts below failed to take note of the same, but assumed and presumed as though Exhibits B-1 to B3 contemplated the existence of a permanent common cart track over the plaintiffs land for the defendants'' use.
35. The learned Senior counsel for the defendants would argue that S. No. 210, is situated to the East of the plaintiff''s land and the common cart track goes to that S. No. 210 and from there also the defendants had access to their land and house in S. No. 207 as the defendants land and houses are situated in both S. Nos. 207 and 210.
36. If that be so, in the Commissioner''s report, the physical features should have been to the effect that in a ''U'' shaped manner the cart track turned in S. No. 210. But there is no such reference at all.
37. Pulling no punches and without mincing words, I would like to point out that undoubtedly the defendants are having the right to take their cart over the plaintiff''s land, but that is subject to the right of the plaintiff. While saying so, the plaintiff also, under the pretext of exercising his exclusive right over his land in S. No. 205 cannot through out the year prevent the defendants from taking their cart to their land and houses. As such, among the agriculturists, the agricultural operations should be conducted in such a manner that one should not prove himself a scourge to the welfare of the other. Keeping that in mind and also the precedent cited supra, the plaintiff and the defendants should conduct themselves while exercising their respective rights.
38. In order to disambiguate the ambiguity if any, I would like to reiterate that the defendants are having right of easement, to wit, to pass and re-pass through the land of the plaintiff personally as well as by taking the cart, but they cannot lay claim over any specific permanent common cart track over the plaintiffs land.
39. Both the Courts below simply granted injunction in favour of the plaintiff in respect of the plaintiff''s entire land bearing S. No. 205 except for the ABCD portion mentioned in the plaint, which itself is not at all clear in view of my discussion supra. As such, the judgments and decrees of both the Courts below should be modified as under:
The Commissioner''s report and sketch, Exhibits-C3 and C4 shall form part and parcel of the decree and the defendants are having their right to have ingress and egress to their land and houses through the blue coloured portion specified therein. The defendants also shall have the right to take their carts over the plaintiff''s land in S. No. 205 without detriment to the crops, if any, of the plaintiffs in that land and in the meantime, the plaintiff also shall facilitate the defendants to take their carts without detriment to his own agricultural operation. As such, subject to the above alone, the declaration and injunction are granted in favour of the plaintiff and as against the defendants.
40. Accordingly, the substantial questions of law are answered as under:
Substantial Question of Law No. (1) is decided to the effect that the Courts below were not right in granting the decrees in respect of ABCD portion in the plaint, which was not even found described properly in the plaint.
Substantial Questions of Law Nos. (2) to (4) are decided to the effect that the Courts below were not justified in holding that a cart track existed in the plaintiff''s land for the defendants use quite against the advocate Commissioner''s reports and sketches.
41. Wherefore, this Court modified the judgments and decrees of both the Courts below as indicated above.
42. In view of the discussion supra, there is need to entertain the additional documents sought to be produced by the plaintiff. In the result, the judgments and decrees of both the Courts below are set aside and the declaration and injunction are granted to the limited extent indicated supra. The second appeal is disposed of accordingly. No costs. Connected miscellaneous petition is allowed.
