Chandrasekar vs Elumalai
2021 Latest Caselaw 9384 Mad

Citation : 2021 Latest Caselaw 9384 Mad
Judgement Date : 9 April, 2021

Madras High Court

Chandrasekar vs Elumalai on 9 April, 2021

S.A.No.802 of 2009

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.04.2021

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.802 of 2009

1. Chandrasekar

2. Sankar

3. Chandiran

4. Sathyarja
... Appellants

Vs
1. Elumalai

2. Devanathan

... Respondents

Prayer : Appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree in A.S.No.72 of 2007
dated 23.12.2008 on the file of the Principal Subordinate Judge,
Villupuram, confirming the decree and judgement in O.S.No.441 of
2003 dated 26.04.2007 on the file of Principal District Munsif,
Villupuram, by allowing this second appeal.

1/10

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S.A.No.802 of 2009

For appellants : Mr. S. Krishnasamy

For Respondents : Mr. Rajarajan
for Mr.R. Balakrishnan for R1 and
R2

JUDGMENT

The defendants are the appellants before this Court.

2. The appeal arises against the concurrent judgment and

decree of the Courts below, passed against the defendants in a

suit for bare injunction.

3. The respondents/plaintiffs had filed a suit for bare

injunction in respect of 34 cents, out of a total extent of 69

cents in Survey No.383/2, Arappasampalayam Village,

Kandamangalam Panchayat Union, Villupuram District.

4. The facts in brief are as follows:

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4.1. The parties are referred to in the same array as in the

suit. The case of the plaintiffs is that the property belong to

three brothers namely, Varadharaja Kounder, Kesava Kounder

and Govindaraj Kounder. Arjuna Kounder is the son of

Varadharaja Kounder. The plaintiffs are the sons of Arjuna

Kounder. It is their case that three brothers had partitioned

the entire extent of 69 cents under a Partition Deed dated

20.10.1964. Kesava Kounder got the Northern 23 cents,

Varadharaja Kounder got the Southern 23 cents and the middle

portion of 23 cents was allotted to the three sons of Govindaraj

Kounder. The sons of Govindaraj Kounder sold 11 1/2 cents to

Kesava Kounder and 11 1/2 cents to Arjuna Kounder

contiguous to their respective lands. As a result of this

purchase, Kesava Kounder and Arjuna Kounder each owned a

total extent of 34 1/2 cents.

4.2. It is the case of the plaintiffs that by Settlement Deed

dated 10.10.2003, Arjuna Kounder had settled the suit property

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in favour of the plaintiffs. The defendants had attempted to cut

the trees in the property and since they continue to do so, the

plaintiffs have come forward with the suit for bare injunction.

5. The defendants would inter alia contend that under the

partition deed dated 20.10.1964, which is marked as Ex.A1,

the right of way has been given to all the parties in the entire

extent of 69 cents. In the year 2000, since the defendants

wanted to construct upon their lands they required a passage,

for which they had asked Arjuna Kounder to give them a right

of way. Though initially Arjuna Kounder refused to give the said

right thereafter a panchayat was held and Arjuna Kounder

ultimately agreed to give the pathway east to west measuring a

breadth of 10 feet exactly in the middle of the property and

thereafter North to South to a breadth of 18 1/2 feet

connecting the street.

6. The defendants would contend that later an Agreement

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of Partition was entered between the father of the plaintiffs and

first defendant on 22.02.2003. The defendants would contend

that they had acted upon the said agreement and had also

gifted the pathway to the panchayat. The defendants would

further contend that they had no other pathway to reach the

property. Both the Courts below concurrently held that the

parties had an access to their respective share from the

common pathway from the street on the East and the North.

The case of the defendants in so far as Ex.B5 is concerned, was

disbelieved. The said document was also an unregistered

document which could not be looked into. Challenging the said

Judgement and Decree, the defendants are before this Court.

7. Mr. S.Krishnaswamy, learned counsel appearing on

behalf of the appellants would contend that in Ex.A1 Partition

Deed as early as in the year 1964, the parties had agreed that

each of the sharers would continue to have the right to take the

cattles and vehicles as already enjoyed through the properties

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without disturbance to the other sharer; this according to him

would clearly show that there was a pathway and the right to

each of the sharers in the said pathway under Ex.A1.

8. He would further submit that Ex.B5 is nothing but a

follow up of Ex.A1 whereunder the right given in Ex.A1 was

clearly set out and demarcated in Ex.B5.

9. Per contra, Mr. Rajarajan, learned counsel appearing on

behalf of the respondents would submit that as per the recital

in the partition deed Ex.A1, parties had the right to enjoy the

property by continuing to take their cattle as well as vehicles,

was only on account of the fact that then the property were

agricultural lands and therefore there was a necessity to take

the cattle through the entire property. However, over the

passage of time, agricultural activities have come to a stand

still in the respective properties. All the three portions had

access to common pathway which was the pathway demarcated

as the access. This pathway runs right through the entire

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extent of 69 cents. Therefore, the contention of the defendants

that they had no other pathway is totally a false statement and

therefore the Judgment and decree of the Courts below cannot

be set aside.

10. A perusal of the judgements of the Trial Court as well

as Appellate Court would clearly indicate that the entire extent

of 69 cents, which had been already partitioned had access to

the pathway and there was no necessity for an additional

pathway running through the entire extent.

11. The learned Appellate Court had observed as follows:

69 brd;l; cs;s epykhFk; fPHg; [wk; tlg[wk;

tPjpcs;sJ/ gpujpthjpapd; tPlo; w;F tUtjhf ,Ue;jhy;

bghJ tPjpapd; tHpahfj;jhd; tu ntz;Lk;/ me;j bghJ

tHpahfj;jhd; mtuth;fSila taYf;Fk; tPl;Lf;Fk;

brd;W tUfpwhh;fs;/

12. Therefore this clearly demonstrates that the

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contention of the defendants that they do not have an

alternative pathway is an absolute false statement. Further, a

perusal of Ex.B5 Agreement does not show clearly whether

there exists a pathway, as the pathway is not described with

any specific boundaries. Therefore, the recital in Ex.B5 does

not advance the case of the defendants. That apart, the recital

in Ex.A1 would also not come to the rescue of the defendants.

13. In the above circumstances, I do not find any cause to

interfere in the Judgement and Decree of the Trial Court as

confirmed by the Appellate Court. No substantial question of