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TMI Blog2016 (11) TMI 1675X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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 3 rd 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 decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 & Investors P. Ltd.). 8. Mr.A.K.Kumarasamy, learned counsel appearing for the 1 st respondent 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 3 rd defendant is only the subsequent purchaser during the pendency of the suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered 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: (emphasis supplied) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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