Madras High Court
Jeeva vs Nallappan on 18 August, 2021
S.A.No.608 of 2021 &
CMP No.12694 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.608 of 2021
and CMP No.12694 of 2021
1. Jeeva
2. Gnanasekaran ... Appellants
Vs.
1. Nallappan
2. Saroja ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the Judgment and Decree, dated 11.03.2019 made in
A.S.No.64 of 2016 on the file of the Additional Sub Court, Namakkal
confirming the Judgment and Decree, dated 19.08.2016 made in O.S.No.293
of 2014 on the file of the Principal District Munsif, Namakkal.
For Appellant : Mrs.D.Sathya
1/10
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
JUDGMENT
The defendants are the appellants before this Court, challenging the
concurrent Judgment and Decree in a suit for bare injunction in respect of a
pathway which has been more fully described in the Schedule to the plaint.
2. The facts in brief necessary for disposing of the above Second
Appeal are herein below narrated and the parties are referred in the same
status as they were before the Trial Court.
3. The plaintiffs had filed a suit in O.S.No.293 of 2014 on the file of
the learned Principal District Munsif, Namakkal for an injunction in respect
of the suit pathway. It is their case that the suit property is comprised in
Survey Nos.26/3, 26/5, 26/8, 26/9 in Periyakulam Village, Namakkal District,
is the subject matter of the suit. These properties are all Agricultural lands.
The 2nd plaintiff has also constructed a house and is residing thereon. A plan
showing the suit property has been attached to the plaint. The plan has
described the lands of the defendants and the plaintiffs as also their respective
houses. The common pathway used by the plaintiffs as well as third parties
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
has been described as X, X1 and X2.
4. The case of the plaintiffs is that the land marked as X, X1 and X2
which measures 12 feet in breath, is the only access to the properties of the 1st
plaintiff which has been described as 'P' in the plaint plan. The plaintiffs
would submit that this pathway is the common pathway, through which not
only the plaintiffs, but also the third parties were accessing their respective
lands. The defendants claiming an exclusive right to this pathway, is
preventing the plaintiffs from accessing the lands shown as 'P' in the plaint
plan. They also attempted to put up a barbed fence closing the gates on
25.07.2014, which was successfully prevented by the plaintiffs. The
defendants have given out that they will somehow close the pathway and
therefore no other alternative remedy, the plaintiffs have approached this
Court.
5. The 1st defendant had filed a written statement which was adopted
by the 2nd defendant, inter alia denying the claim of the plaintiffs that X, X1
and X2 pathway is a common way and also that the defendants had attempted
to obstruct the said pathway. The defendants would submit that from the
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
route described as Y and Y1, there is a pathway commencing from point X to
X1 and at the point X1, the pathway would turn to the west and it is this
pathway that the plaintiffs were using to reach their property indicated as 'P'
in the plan. Beyond, the point X1, the plaintiffs did not have any right and
the same belongs exclusively to the defendants. The defendants have been
using this pathway at their convenience and the plaintiffs cannot seek any
right over the same.
6. An Advocate Commissioner was appointed who had submitted a
report and a plan showing a well-defined pathway marked as X, X1, X2, X3,
X4, X5, X6 and X7. The Commissioner had reported that this pathway is
bounded on either side by agricultural lands from the point X1 to X3.
Thereafter, from the point X3 to X4, the pathway measures an extent of 21
feet in width. From the point X3 to X7, the plaintiffs have their agricultural
lands on the west and a house H to the East. The defendants house shown as
H1, H2, H3 immediately east of the pathway. H3 house is in a dilapidated
condition. From the point X4 to X5 the breath of the pathway is 20 feet.
Here, the pathway is at a lower level. Once again from point X5 to X6, the
breath of the pathway is 21 feet and from X6 to X7, it is 22 feet. Thereafter
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
from the point X7 the pathway proceeds westwards and then turns North and
proceeds to a very long distance. The Commissioner has also noticed the
blue metal and pillars on the pathway. Therefore, the Commissioner's report
has clearly indicated a well defined pathway from the point X1 to X7.
7. The trial Court after framing issues had commenced trial. The 1st
plaintiff had examined himself as P.W.1 and Exs.A1 to A5 were marked on
the side of the plaintiffs. The 1st defendant examined herself as DW1 and one
Mohanapriya, the Village Administrative Officer of Periyakulam Village was
examined as DW2. The defendants had not marked any documents on their
side. The Village Administrative Officer had filed a photo copy of the plan
which has been marked as Ex.C1.
8. The learned trial Judge on an appreciation of evidence on record,
decreed the suit. Aggrieved by the said Judgment and decree, the defendants
had filed A.S.No.64 of 2016 on the file of the Additional Sub Court,
Namakkal. The learned Additional Subordinate Judge had confirmed the
findings of the trial Court and dismissed the appeal. Aggrieved by which, the
defendants are now before this Court.
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
9. Mrs.D.Sathya, learned counsel appearing on behalf of the appellants
would submit that a perusal of the Commissioner's Report would clearly show
that the plaintiffs have a pathway immediately north of their property and
therefore, there was no necessity for them to enter the pathway shown as
points X4 to X7. She would further submit that the plaintiffs have not
produced any document to show that they had a right to this pathway which
according to the counsel, belongs exclusively to the defendants. She would
also argue that the plaintiffs have not proved the cause of action pleaded by
them namely the attempt on the proof of the defendants to put up a barbed
wire fence. She would therefore submit that since the said cause of action
has not been proved, the suit has to fail.
10. Heard the learned counsel appearing on either side and perused the
papers filed along with the Second Appeal.
11. The Advocate Commissioner's Report and plan clearly indicate that
there is a well defined pathway running from Gandhipuram to Vaiyanai Road
from the point X. Thereafter, from the points X1, X2 up to the point X7.
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
After the point X7 the pathway turns westwards and later turns North and
proceeds to a very long distance. This would clearly indicate that the
pathway was being used by all those persons who are owning lands and who
have their residence on either sides of the pathway assert an exclusive right to
the pathway from point X4 to X7. The defendants who claims an exclusive
right to the suit property produced no evidence to prove the basis for this
claim. On the contrary, the plaintiffs only seek a right of usage of the
pathway along with other third parties. DW2, the Village Administrative
Officer who had been examined on the side of the defendants has admitted as
follows:
“g{!;jpjpapy; fhe;jpg[uk; itaiz bry;Yk; jhu;
nuhl;oypUe;J xU ghij tlf;nf bry;fpwJ/ me;j
ghij vJtiu bry;fpwbjd;W vdf;Fj; bjupahJ/
Mdhy;. Me;j ghijapy; jhd; cgajug;gpdUk;
brd;W tUfpwhu;fs;/”
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
Therefore, the witness examined on the side of the defendants has
herself deposed about the existence of the pathway and its usage by the
parties to the suit as well as third parties.
12. Therefore considering the fact that the defendants denied the right
of the plaintiffs to use the pathway, the Courts below have granted the decree
for injunction. Taking note of the existence of the pathway and its usage, and
also the report of the Advocate Commissioner regarding the existence of blue
metal and pillar on the pathway, I do not find any reason to interfere with the
well considered Judgment and Decree of the Courts below. The appellants
have not made out any question of law, much less a substantial question of
law which enable me to interfere with this second appeal. The Second
Appeal stands dismissed. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
18.08.2021
Index : Yes/No
Speaking Order : Yes / No
vum
To
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
1. The Additional Sub Court, Namakkal.
2. The Principal District Munsif, Namakkal.
3. The Section Officer,
VR Section, Madras High Court,
Chennai.
P.T. ASHA, J,
vum
S.A.No.608 of 2021
and CMP No.12694 of 2021
https://www.mhc.tn.gov.in/judis/
S.A.No.608 of 2021 &
CMP No.12694 of 2021
18.08.2021
https://www.mhc.tn.gov.in/judis/
