Maharaj v Beharrysingh
| Jurisdiction | Trinidad & Tobago |
| Judge | Moosai, J. |
| Judgment Date | 30 July 2003 |
| Neutral Citation | TT 2003 HC 83 |
| Docket Number | H.C.A :No.668 of 1995 |
| Court | High Court (Trinidad and Tobago) |
| Date | 30 July 2003 |
High Court
Moosai, J.
H.C.A :No.668 of 1995
Mr. Vashist Maharaj for the plaintiff.
Dr. Charles Seepersad for the defendant.
Real Property - Easement — Plaintiff claiming a customary right of way or easement by implication, prescription or otherwise — Easement in existence from time immemorial — Judgment for plaintiff — Injunction preventing the defendant from interfering with reasonable enjoyment.
This case has, to a large extent because of the adversarial nature of the proceedings, been hotly contested on all issues of fact and law. However it is my respectful view that when one looks at the facts which are not in dispute in this matter, it is apparent that the facts which are in issue are not really decisive for the proper determination of this case.
The Mahilla Sabha is the unincorporated body comprising at this time of some 30 members which, since some time in the early 1920s, has been in occupation of, and in charge of the day-to-day management and control of the Hindu Temple known as the Green Street Temple (“the Temple”) situate at Green Street, Tunapuna.
Sita Maharaj, the trustee of the Mahilla Sabha, brings this action on behalf of herself and all the other members of the Mahilla Sabha for, inter alia:
- ) A declaration that the plaintiff is entitled to a right of way from Green Street, Tunapuna to the Hindu Temple along the disputed way situated on the Eastern portion of Lot No. 9 and measuring 120 feet long by 15 feet wide (“the disputed way”). 2) An injunction restraining the defendant from interfering with their reasonable enjoyment of the said right of way.
It is not seriously disputed, and in any event I have found, that from 1858 until the actions of the defendant herein in or about October or November 1994, Hindus of the Tunapuna community would use the disputed way which at present stands on lot No 9 to get to the Temple. In the circumstances the plaintiff is essentially claiming a customary right of way and/or an easement whether by implication, prescription or otherwise.
In or about October or November 1994 the defendant, who together with his wife became the owner of Lot No 9 on 8th April, 1994, prevented members of the Temple from using the disputed way to get to the Temple. The defendant did so for the reason set out in his Defence. In that Defence the defendant denied that the plaintiff was entitled to any right of way. However at trial the defendant's contention was modified to a certain extent. The defendant testified that after purchasing the property at Lot No 9, he never refused, nor does he propose to refuse entry to anyone wishing to get to the Temple. It would appear that his main grouse might have been his unwillingness to permit vehicular traffic along the disputed way.
The central issue seems to be, at the end of the day, what was the nature of the right, if any, enjoyed by persons going to the Temple along the disputed way.
I have in my judgment come to the conclusion that the Mahilla Sabha as occupiers of the Temple and/or the lands on which same stand, are entitled to the benefit of a right of way along the disputed way by implication, it being the intention of all the relevant parties that the disputed way was to be so used for the purpose of going to and from the Temple. Having interfered with their use and enjoyment of the right of way, there will be an injunction restraining the defendant by himself his servants or agents or otherwise howsoever from preventing or otherwise interfering with the reasonable enjoyment of the disputed way by the members of the Mahilla Sabha, its servants and/or invitees and/or licencees on foot and with motor vehicles and other conveyances at all times and for the purpose of going to and from the Temple and from doing any act whereby the members of the Mahilla Sabha its servants and/or invitees and/or licencees may be hindered or obstructed in the free use thereof.
With respect to the passage of motor vehicles along the disputed way, no more than two motor vehicles are permitted to pass along the disputed way for the purpose of going to and from the Temple.
I must also extract from the plaintiff an understanding:
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i. To shut the gate at the entrance to Lot No. 9 after religious activities are concluded on each and every occasion.
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ii. Not to park any motor vehicles on any part of the disputed way situate on Lot No. 9.
I should indicate that I would have been prepared, in the alternative, to come to the conclusion that the disputed way was and is by immemorial custom a churchway for Hindus of the Tunapuna community to go to and from the Temple and to grant an injunction restraining the defendant, its servants or agents or otherwise howsoever from disturbing the Mahilla Sabha, its servants and/or invitees and/or licencees in the exercise or enjoyment of their right to use the disputed way.
In order to get a clear understanding of the layout of the area I think it would be helpful if I provide an outline sketch of the general area. This is for the purpose of illustration only.
The disputed way is situate on the Eastern portion of Lot No. 9 and is 120 feet long and 15 feet wide. At present the disputed way is paved. Entry along the disputed way from Green Street is obtained by passing through the gate at the entrance. There is a parking area to the back of the house situate on Lot No.9 which is used at present by the tenants in occupation of same for parking their vehicles.
After the commencement of legal proceedings, Eminthra Rampersadsingh, who lives on lot No. 11 which is the Lot immediately East of the defendant's premises and who has exercised a certain amount of control of the Temple, erected a gate on the Northern boundary of Lot No. 9, effectively preventing entry to the Temple by occupants of Lot No. 9.
I do not think that the general picture as to the early years of the Temple is in dispute. All the parties seem to agree that it was Beharrysingh who constructed the first temple (the Lord Shiva Temple) on a 4-acre parcel of land owned by him. That 4-acre parcel of land was described in the 1927 deed hereinafter referred to as being bounded on the North by a road reserve and by lands of Joseph Warner, on the South by Green Street, on the East by lands of Joseph Warner and on the West by Tunapuna Road. The evidence of Sita Maharaj who was born in 1933, is that her grandmother and all the older members of the temple told her that the Temple was built in 1858. Further she had seen a bronze plaque with the year 1858 inscribed on it and she was told by her grandmother and the older members of the Temple that the plaque commemorated the date the Temple was built. I accept the evidence of Sita Maharaj in this regard. The evidence is supported by the affidavit evidence of Rajmath Seepersad and is consistent with the time span in the evidence of the defendant's witness Roop Narinesingh.
Whilst much of the evidence which has led to the conclusion that the Lord Shiva Temple was built in 1858 is hearsay, in Rajendra Narain v. Gangananda Shah (1925) P.C. 213, Lord Carson at p.216 confirmed the exception of hearsay evidence for establishing that a custom existed from time immemorial:
“As to the date from which the custom is said to have prevailed, after the existence of the custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence, and it is for this reason that such evidence is allowable as an exception to the hearsay rule.”
Phipson on Evidence, 13th Edn. para. 24-62, in dealing with declarations as to pedigree, sets out the principal forms in which hearsay upon matters of pedigree may be tendered and suggests that inscriptions, if publicly exhibited, would be admitted on the presumption of family acknowledgement.
“Inscriptions on tombstones, coffin-plates, mural tablets, hatchments, family portraits, rings and pedigrees are also admissible. If theses are proven to have been made by, or under the discretion of a deceased relation, they will be received as his declarations; If they have been publicly exhibited, they will be admitted on the presumption of family acknowledgement, though their authors be alive. The value of mural and other funeral inscriptions as evidence depends on the authority under which they were set up, and the distance of time between their erection and the events they commemorate. Where immovable, defaced or destroyed they are provable by secondary evidence.
[Emphasis Added.]
Sita Maharaj and the defendant are both descendants of Beharrysingh and the Beharrysingh family was at all material times involved to a substantial extent in the development, management and control of the Temple. The plaque, to the knowledge of the family, publicly commemorated the year the Lord Shiva Temple was built (1858) so that the family would be presumed to have acknowledged that this was the date of construction of same.
Roop Narinesingh, who was approximately 80 years old at the time of trial, a descendant of Beharrysingh and the father-in-law of the defendant, helps us to bridge the gap by providing us with what was on that 4-acre parcel of land around the 1920s. Before dealing with his testimony I should make the point that at times he appeared to me to be somewhat hostile. He also gave me the impression that he was not willing to divulge too much to the Court although he assisted the Court greatly in the neutral history of the early years of the Temple. However when it came to issues which he thought were central to the case he seemed unhelpful. That served to diminish the weight I attached to certain aspects of his testimony.
Roop...
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