Supreme Court of Mauritius, 17 mars 2020, 2020 INT 55 – D. A. Foolchand v D. Foolchand & Anor

1 D. A. Foolchand v D. Foolchand & Anor

2020 INT 55

CN416/2017 THE INTERMEDIATE COURT OF MAURITIUS

(CIVIL) In the matter of: – Dev Anand Foolchand Plaintiff v/s

1. Devikarani Foolchand 2. Daneswar Foolchand Defendants JUDGMENT

The plaintiff avers that he is the owner of a portion of land of 247.79 square metres (“m2”) at Petit Verger, St Pierre (Vol. 4729 No.25) and the defendants are the owners of a portion of land adjoining his. There is a 1.83 metre (“m”) wide common and party road (“the road”) to all occupiers. Defendant no.1 has without right, title, capacity and authorisation illegally constructed a concrete step, which obstructs the road by 0.17m on 1m and the defendants have placed a metallic gate at the entrance thereof, thus obstructing his free access to his property. The defendants have failed and neglected to comply with his amicable requests “to remove and/or to remove the metallic gate” (sic) and with the exigencies of the notice mise en demeure served on them on 1 February 2017. He therefore prays for a judgment condemning and ordering (a) defendant no.1 to remove the concrete step obstructing the road, (b) the defendants to remove the metallic gate “obstructing the access to the right of way” (sic) and (c) the defendants to pay jointly and in solido to him Rs500,000 as damages, with costs and costs of the notice mise en demeure.

The defendants take note of the ownership status of the parties and the existence of the common and party road. They deny the other material averments in the plaint and aver that the concrete step and gate have existed for more than 40 years and have been constructed or placed with the consent and knowledge of all the residents and heirs in that area, including the plaintiff. The

2 gate, which offers a secure area to the residents, was not constructed by defendant no.2 alone and was also put with the financial contribution of all the residents and heirs, including the plaintiff. The concrete step and metallic gate do not constitute obstructions: the plaintiff has not made any complaint to the residents and has failed to explain how his access is obstructed. The plaintiff has entered the case in bad faith and out of revenge with the sole aim to cause trouble and annoyance, since he is not on good terms with the occupiers, who have given declarations against him at St Pierre Police Station for his aggressive behaviour. They admit that they did not comply with the exigencies of the notice mise en demeure and aver that they have tried to reason with the plaintiff since he is aware they did not construct the concrete step and metallic gate alone. They move that the present matter be dismissed, with costs.

The case for the plaintiff

The gist of the evidence for the plaintiff is as follows: the plaintiff owns a plot of land at Petit Verger, Phoenix (Document B) and the defendants, his sister and brother, are the owners of adjacent properties. There is a 1.80m common road through which he gets access to and from his property and which is also used by all neighbours. He has retained the services of a sworn land surveyor and agrees with his report: the surveyor has observed that the defendants have put a metallic gate (“the gate”). The gate prevents him from having access to his property and from proceeding with the construction of his house as vehicles cannot go through, is closed and they put a padlock each time he goes out so that he has to knock when he comes back. There is also a concrete step (“the step”) which is part of defendant no.1’s property that obstructs the passage of his vehicle: a 4X4 can go in, but the step is in the way and he has to swerve towards defendant no.2’s side. He denies that 4X4 vehicles enter his yard (Document D). He does not remember when the step was constructed, but it was a long time ago. He has asked them to remove it and has served a mise en demeure on them, but they have not complied (Document C). He did not ask for any injunction as this depended on his means at the time. He has a chemin de sortie at the back, but it is narrower as vehicles cannot go through. He is not on good terms with the defendants and the other inhabitants, who have entered several cases against him before the District Court of Moka. He denied that the step has existed for more than 40 years, that he consented to the construction of the step and gate, that he has an easy access or that he has entered the case as a revenge against the defendants: he is asking for his rights. He is asking for a judgment for the gate and step to be removed and damages of Rs500,000 as he has suffered prejudice for a long time.

3 Mrs Hassan Miyan, sworn land surveyor, was retained by the plaintiff for a survey. He went to the locus on 13 December 2016 after he served a notice on the neighbouring owners and has drawn a report of his findings (Document A). The road is 1.83m wide and the gate is across that road. His observations that defendant no.1 constructed the step and the defendants put the gate are as per the statement of his client but he found that the step obstructs the road, the road is not wide enough and that it is difficult for a car to go through, although the plaintiff parks his car thereon, but with difficulty. The case for the defendants

For the defendants, the evidence as per defendant no.2, also representing defendant no.1, is that the step and gate do not obstruct the plaintiff’s access. They all contributed and consented verbally to put the gate for security reasons, amongst others to prevent children going onto the road, and it was not to embarrass anyone. It is not true that the plaintiff is being prejudiced as vehicles can go in and out, as his sister and he left almost four feet and their vehicles go in. The photos he took show his place and the plaintiff’s vehicle (Documents E, E1 to E3). They have never put any padlock on the gate and the plaintiff has an easy access. The step was put when the building was constructed. He was never served with any injunction to prevent the construction of the step or gate. The plaintiff is not on good terms with them or with all the others, as he is very difficult. He has not brought proof that all the residents, inclusive of the plaintiff, consented and contributed to the gate, as it is an old matter. He has not summoned witnesses in support of his averment that declarations were made against the plaintiff. He denies that the defendants have illegally constructed the step and put the gate and the plaintiff’s contention of obstruction and his claim for damages.

Discussion

There is evidence on record that the plaintiff is the owner of a plot of land of 247.79m2 situated at L’ Agrément, St Pierre in the district of Moka and that he has a right of way on the 6ft (1.83m) wide road bordering his property as per his title deed – see Document A.

The plaintiff was cross-examined about the existence of an exit road at the back of his property, but it was never the case of the defendants that the plaintiff should be using the exit road at the back. In any event, even if he has another exit road at the back, this does not affect his right to use the 1.83m wide exit road, as provided in his title deed.

4 I find that there is sufficient evidence on record for me to infer that the defendants are the plaintiff’s neighbours inasmuch as they do not specifically deny that they own portions of land adjacent to that of the plaintiff, that they also have access on the road and defendant no.2 has not explicitly denied such averments or the plaintiff’s version in examination-in-chief that the defendants are his neighbours and furthermore, defendant no.2 has adduced evidence to the effect that the gate was put for the safety of the residents. It is to be noted that in the plaintiff’s title deed, it is mentioned that four plots of land, originating from a larger portion from which derives also the plaintiff’s plot of land, were transferred to defendants nos.1 and 2 and two other persons.

The plaintiff’s right to use the 1.83 wide road having been established, the manner in which he, as well as the defendants, can use same is governed by article 702 of the Code civil, which reads as follows:

De son côté, celui qui a un droit de servitude, ne peut en user que suivant son titre, sans pouvoir faire ni dans le fonds qui doit la servitude, ni dans le fonds à qui elle est due, de changement qui aggrave la condition du premier.

In M. R. Joosub v A. B. Badulla [2019 SCJ 165] the Supreme Court cited an extract from Répertoire Civil Dalloz, April 2016, which I find relevant to the present matter, as follows:

«696. Le propriétaire du fonds dominant dispose des droits qui lui permettent de profiter pleinement et effectivement de la servitude (V. infra, n os 697 s.) mais il ne peut modifier ou aggraver la servitude (V. infra, n os 709 s.).

697. Une servitude droit remplir pleinement ses fonctions. Le propriétaire du fonds dominant doit alors pouvoir prétendre à des servitudes accessoires (V. infra, n os 98 s.), comme il peut édifier des ouvrages nécessaires à l’exercice de la servitude (V. infra, n os 703 s.). …

710. Le propriétaire du fonds dominant ne peut user de la servitude que dans la limite des besoins qui ont justifié son existence, sans avoir des agissements qui la rendent plus onéreuse pour le propriétaire du fonds servant. Telle est la règle dégagée par l’article 702 du code civil … Et sur ce point, la Cour de cassation continue d’adopter une analyse

5 rigoureuse en affirmant le principe qu’une servitude de passage ne peut conférer le droit d’empiéter sur la propriété d’autrui. Ainsi, le bénéficiaire d’une telle servitude … ne peut procéder à des travaux de construction sur un fonds supérieur qui aggravent la servitude du fonds voisin inférieur…

711. En somme, d’une part, le propriétaire du fonds dominant doit exercer la servitude dans les limites de son droit défini initialement par son titre ou sa possession; peu importe si l‘exercice hors de ces limites n’aggraverait pas la condition du fonds servant et ne causerait aucun préjudice à son voisin. D’autre part, même s’il demeure dans ces limites, le propriétaire du fonds dominant ne peut pratiquer un quelconque changement qui aggraverait la servitude. (F. TERRḖ et Ph. SIMLER, op. cit., n o 908). »

It is therefore incumbent on all the persons having a right of access on the road, the plaintiffs and the defendants amongst others, not to make any changes that would cause obstruction or hinder the access of any other person entitled to use the said road.

It is not disputed that there is a concrete step on the 1.83m wide road and a metallic gate placed at one end of the said road, as per the evidence of the plaintiff as supported by Mr Hassan Miyan. However, what is in dispute is the plaintiff’s averments that defendant no.1 constructed the step and the defendants placed the gate.

It is to be noted that Mr Hassan Miyan has conceded that his observations that defendant no.1 constructed the step and both defendants have placed the gate derive from what the plaintiff has reported to him. Therefore, the said observations about the persons who constructed the step and put the gate are untenable for not being reached as a result of his independent searches and not being supported by any independent evidence, oral or otherwise.

I note that in his submissions Mr A. Luximon, counsel for the plaintiff, said that there is a step which “defendant no.2 has built up” (sic) which is a stark contrast to the plaintiff’s averment in his plaint that it is defendant no.1 who constructed the step. I find that not only the plaintiff’s version about the constructor of the step changed as the case unfolded, he has failed to substantiate such averment in examination-in-chief since he merely said that there was such a step there. I note that the plaintiff said in cross-examination that the defendants agreed to put the step to ‘prevent him’: it is not plausible that defendant no.1 would go to the extent of incurring expenses to construct a concrete step for the sole reason of preventing the plaintiff from using

6 the road or hindering his free access. I find that the plaintiff’s version is incoherent, thereby undermining his credibility and rendering his version doubtful.

The plaintiff does not aver in his plaint when the concrete step was constructed, but conceded in cross-examination that it was constructed a long time ago, thus giving credence to the defendants’ version that the step has existed for more than 40 years is plausible. I also find the contention of the plaintiff that his failure to take any measure to prevent the construction of the step was because of the lack of financial means unconvincing. I am alive to the fact that there is undisputed evidence that the step is part of defendant no.1’s property, but I find that the plaintiff has not established to the satisfaction of the court that if was defendant no.1 only who constructed it illegally, without the plaintiff’s consent.

The plaintiff has not averred in his plaint when the metallic gate was put and has not adduced any other evidence in support of his contention that it was the two defendants only who placed the said gate. In fact, in court he merely said that it was Mr Hassan Miyan who observed that the defendants had put the gate. Once more, his version about the person(s) who put the gate alters throughout the case. Therefore, the evidence of defendant no.2 that the gate has existed for more than 40 years has not been rebutted. In the circumstances, the fact that the defendants did not produce a title deed does not adversely affect their case. Furthermore, I find convincing defendant no.2’s testimony that the gate was put with the verbal consent and financial contribution of all the residents, inclusive of the plaintiff. It is to be noted that Mr Luximon has submitted that there is no evidence of any written consent: it was never averred by the defendants that the consent was written. I am alive to the fact that the defendants have not produced any proof that the residents, including the plaintiff, agreed and contributed financially to the gate, but since the residents are all of the Foolchand family, there is nothing unusual or sinister in the consent being verbal.

I find that the plaintiff has not established that the step and gate obstruct his free access to his property. I find that the evidence of the plaintiff that vehicles cannot go through on the road far from convincing, the more so that after having claimed in examination-in-chief that no vehicles could go through, he admitted in cross-examination that a 4X4 vehicle can go through. Moreover, I bear in mind the photos that defendant no.2 produced showing a 4X4 vehicle on the road. Defendant no.2 was challenged about the location shown in the photos he took and produced in court, but I believe him when he says that they show the concerned properties and the plaintiff’s 4X4 vehicle on the road. In the circumstances, I find that the said photos are evidence that the

7 plaintiff can drive his vehicle through the road to reach his property and therefore that he is not hindered in the use of the said road. The evidence of Mr Hassan Miyan that the road is not wide enough is also not tenable since the sworn land surveyor admitted that the plaintiff parks his car there.

The road is 1.83m wide and the concrete step impinges on only 17cms on the said road. I find that the presence of the step on 17cms of a 1.83m wide road does not constitute an obstruction and that even if the plaintiff has to swerve to avoid the step, such action would not impede his progress along the said road.

As for the metallic gate, the plaintiff has claimed for the first time in court that the defendants put a padlock thereon compelling him to knock each time he goes out and comes back. He has clearly travelled outside his plaint and furthermore, the photos he produced in court do not show any padlock on the gate. In the light of the tenor of the plaintiff’s evidence on this matter, I have no compunction in believing defendant no.2 that they never put a padlock on the gate and therefore never obstructed the plaintiff’s free access through the said gate. Defendant no.2 has maintained that the gate was put for safety reasons and that there was no intention to hinder anyone and I find such eve convincing. I find that the fact that the gate is closed does not constitute an obstruction to the plaintiff’s free access on the road. I therefore find that the plaintiff has not established that the gate constitutes an obstruction to his free access to his property.

The defendants have averred that the plaintiff has entered the case in utter bad faith and out of revenge as he not on good terms with the other residents. Mr Luximon has submitted that the defendants have not called any witnesses in support of their contention that the occupiers of the area have given declarations against the plaintiff for his aggressive behaviour. The plaintiff has conceded that he is not on good terms with the defendants and the other residents, but even though the defendants have not called witnesses from St Pierre Police Station, his own inconsistent testimony and the evidence on record indicate that he is of utter bad faith.

Since I have found that the plaintiff has not established that the defendants have by their constructions obstructed his free access to the road or to his property, the issue of damages does not arise.

Conclusion

8 For all the reasons given above, I find that the plaintiff has failed to prove his case against the defendants on a balance of probabilities. I therefore dismiss the plaintiff’s action, with costs.

W. V. Rangan Vice-President Intermediate Court

This 17 th of March 2020