A Footpath Is Not a Cart Track — Madras High Court Reaffirms Transfer of Easement Through Sale Deed, Rejects Notion of Alternate Access

“Even if there is an alternate pathway, a 1½ feet-wide footpath is not a legal substitute for a 15-feet cart track that is lawfully part of the property… Right to Access Over a Cart Track Transfers with the Land”— In a significant ruling  Madras High Court, through Justice C.V. Karthikeyan, set aside a First Appellate Court’s decision which had denied the plaintiff’s right to use a cart track by citing an alleged alternate route. High Court emphatically ruled that an easement such as a cart track—specifically referred to in the registered sale deed—cannot be extinguished merely by the existence of a narrow footpath elsewhere on the land.

The case involved a long-standing dispute concerning the right to use a cart track traversing Survey No. 129 of Munjanoor Village, where the plaintiff, Sengoda Gounder, claimed access to his lands and farmhouse via a defined 15-feet-wide cart track leading from a Panchayat road. The right was disputed by adjoining landowners, leading to two cross-suits—one for declaration of easementary right and injunction (O.S. No. 489 of 1981), and the other seeking declaration of exclusive title and possession (O.S. No. 274 of 1986).

The District Munsif Court, Tiruchengode, decreed in favour of Sengoda Gounder, but the Subordinate Judge's Court at Tiruchengode reversed the decree, accepting the argument that there existed an “alternate access” from the southern boundary. It was this reversal that came under scrutiny in the present second appeals.

“The First Appellate Court failed to distinguish between an access and a right”—Court says 1.5 feet footpath cannot be mistaken for a cart track used by men, cattle and carts

Justice Karthikeyan, after an exhaustive review of the Commissioner's Reports (Exs. C1 to C4) and documentary evidence, pointed out the fundamental error in the First Appellate Court’s judgment:

“A foot path of 1½ feet would hardly be convenient for cattle and no cart can be taken through it. Therefore, even if there is an alternate pathway, the First Appellate Court had wrongly misconstrued the existence of a 1½ feet wide pathway to deny the appellants the usage of the suit cart track.”

The Court noted that the Commissioner had confirmed the existence of the 15-feet wide cart track, which was visibly in use and weather-beaten, connecting the Panchayat road to the plaintiff’s house and lands. The alternate path—referred to in the appellate judgment—was described by the Commissioner as a narrow trail overgrown with bushes, insufficient even for cattle, let alone carts.

“The First Appellate Court misconstrued Exs. C-3 and C-4 holding that there was an alternate cart track for the appellants when actually it was only an alternate footpath and not a cart track.”

“Easements pass with the land unless expressly excluded”—Court invokes Section 8 of Transfer of Property Act to reaffirm right

Central to the Court’s reasoning was the interpretation of Section 8 of the Transfer of Property Act, 1882, which the trial court had relied upon but the appellate court had overlooked.

Justice Karthikeyan observed: “Unless the transferor had expressed that the easements annexed to the property are not transferred, such easements are actually transferred.”

Referring to the registered sale deed dated 11.11.1963 (Ex.A1), by which the plaintiff acquired the land, the Court held:

“The sale deed showed the existence of the pathway as a boundary… The right to use the pathway, and the interest on the pathway which the transferor had, was transferred to the first appellant.”

The Judge clarified that this right was not a mere convenience, but a legal incident that was part of the title transferred. Citing Bishundeo Narain Rai v. Anmol Devi, (1998) 7 SCC 498, the Court reiterated that once a property is transferred, all existing legal interests—including easements—transfer with it, unless the deed states otherwise.

“The right to use the pathway was implied by transfer of the property… it also necessarily included the easements attached with the property.”

“A cart track used for decades cannot be replaced by a bushy trail and denied under the guise of alternate access”—High Court restores trial court’s decree

The Court concluded that the First Appellate Court had committed grave factual and legal errors by equating a cart track with a footpath and by overlooking the law on easementary rights. Holding that the pathway had been in existence even before the sale deed and formed part of the legal rights transferred to the appellant, the Judge declared:

“The appellants can never be called upon to use the alternate footpath which is a poor substitute for the existing suit pathway.”

Justice Karthikeyan accordingly allowed the Second Appeals, set aside the appellate judgment, and restored the trial court’s decree affirming the plaintiff's right to use the cart track.

Date of Decision: 19 August 2025