Sundarakonar ... Defendant / ... vs Ramiah ... Plaintif / Appellant /
2021 Latest Caselaw 13876 Mad

                                                                                   S.A.No.1708 of 2001

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 13.07.2021

                                                        CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.No.1708 of 2001
                                                       and
                                              C.M.P.No.3117 of 2005


                   Sundarakonar                           ... Defendant / Respondent / Appellant

                                                        -Vs-


                   Ramiah                                  ... Plaintif / Appellant / Respondent


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree dated 20.09.2001 made in A.S.No.30
                   of 2001 and O.A.No.142 of 2001 on the file of the Principal Sub Court,
                   Tenkasi in reversing the judgment and decree dated 28.02.2001 made in
                   O.S.No.237 of 1999 on the file of the District Munsif Court, Tenkasi.


                                        For Appellant          : Mr.K.Rajkumar
                                        For Respondent         : Mr.D.Nallathami
                                                                for Mr.V.Meenakshi Sundaram
                                                   JUDGMENT

The defendant in O.S.No.237 of 1999 on the file of the District

Munsif Court, Tenkasi is the appellant in this second appeal.

https://www.mhc.tn.gov.in/judis/

S.A.No.1708 of 2001

2. The said suit was instituted by the respondent herein seeking the

relief of declaration that the third suit schedule property is a public pathway

and that the defendant should not restrain the plaintiff from exercising his

right over the said public pathway. Adjacent to the said public pathway, a

drainage channel is also running. The plaintiff wanted that the said

drainage channel should not be obstructed by the defendant. In the event of

there being any obstruction, the same should be directed to be cleared by

way of mandatory injunction. With these reliefs, the plaintiff moved the

trial Court.

3. The defendant filed his written statement. An advocate

commissioner was also appointed and he filed his sketch and plan.

The plaintiff examined himself as P.W.1. One Gnanaprakasam who is the

plaintiff's neighbor was examined as P.W.2. Ex.A1 to Ex.A5 were marked.

On the side of the defendants, one Pandara Konar was examined. Ex.B1-

notice sent to the defendants by the plaintiff was marked. The trial Court

framed the necessary issues. After considering the evidence on record, the

trial Court dismissed the suit by judgment and decree dated 28.02.2001.

Aggrieved by the same, the plaintiff filed A.S.No.30 of 2001 before the Sub

Court, Tenkasi. By judgment and decree dated 20.09.2001, the suit was

decreed as prayed for. Challenging the same, the defendant has filed this

second appeal.

https://www.mhc.tn.gov.in/judis/

S.A.No.1708 of 2001

4. The second appeal was admitted on the following substantial

questions of law:-

“1. Whether the lower appellate Court is right in granting declaration without proving the Will Ex.A5 in accordance with the provisions of the Indian Succession Act, 1956?

2. Whether the lower appellate Court is right in granting injunction and right of pathway in respect of the properties which are beyond the scope of the suit?

3.Whether the lower appellate Court is right in decreeing the suit based on Ex.A5 as regards the right of pathway in third schedule property? when admittedly, Door Nos.19, 20 and 21 are not situated in the suit properties?

4.Is not the plaintiff estopped from claiming right in respect of suit property in the light of stand taken in Ex.B1?

5.Is not the suit barred by limitation in respect of mandatory injunction as per the provisions of the Limitation Act?”

5. The dispute between the parties turns on the right to use the suit

pathway and the drainage channel. The report of the advocate commissioner

together with the sketch plan gives a clear idea about topographical

features. The suit pathway is located to the east of Tenkasi – Madurai

Road. The appellant / defendant namely Sundarakonar is having two

houses to the north of the suit pathway and one house to the south of the

suit pathway. The plaintiff owned five cents of land immediately to the east https://www.mhc.tn.gov.in/judis/

S.A.No.1708 of 2001

of Sundarakonar's house. Later, he sold four cents of land to two persons

namely one Gnanaprakasam and Anna Lakshmi. Gnanaprakasam had put

up a house immediately adjacent to the house of the defendant. Anna

Lakshmi is retaining the land purchased by her as vacant site. To the

further east of Anna Lakshmi's land, Ramiah's house is located.

6. The specific case of Ramiah is that the suit pathway extends and

turns north and runs between the land sold to Anna Lakshmi and his house.

The advocate Commissioner had clearly and categorically mentioned that

the suit pathway is a public pathway. In fact, the appellant does not appear

to seriously contest the said proposition. His primary ground of attack is

that the present suit is not maintainable because the plaintiff had obstructed

the eastern end of the said pathway.

7. I am of the view that even though a number of interesting

substantial questions of law have been framed, in view of the stand of the

appellant himself, there is no need to answer the same. The first appellate

court has only given declaration that the suit pathway is a public pathway

and the use of the plaintiff cannot be obstructed. From the report of the

advocate commissioner, the existence of the drainage channel also cannot

be in doubt. The same is also meant to be used by the residents whose

houses are adjacent to the drainage channel. https://www.mhc.tn.gov.in/judis/

S.A.No.1708 of 2001

8. In this view of the matter, the judgment and decree passed by the

first appellate court is confirmed. If the appellant has any grievance about

the obstruction created by the plaintiff, it is certainly open to the appellant

either to file an independent suit for removal of the obstruction or petition

the local body. It is well settled that any public pathway vests only with the

local body. Therefore, it is the duty of the local body also to remove any

obstruction on a public pathway. Therefore, leaving open the appellant's

right to seek removal of the obstructions on the pathway that is said to

connect Thenkasi – Madurai Road with Koolakadi Bazaar, this second

appeal is dismissed. I make it clear that this should not be taken as

recommending any adverse action against the plaintiff. It is for the

defendant to establish that the plaintiff had caused any obstruction on the

eastern end. No costs. Consequently, connected miscellaneous

petition is closed.

13.07.2021

Internet : Yes/No Index : Yes/No rmi To

1.The Principal Sub Court, Tenkasi.

2.The District Munsif Court, Tenkasi.

3.The Section Officer, Vernacular Records,Madurai Bench of Madras High Court, Madurai. https://www.mhc.tn.gov.in/judis/

S.A.No.1708 of 2001

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.No.1708 of 2001 and C.M.P.No.3117 of 2005

13.07.2021

https://www.mhc.tn.gov.in/judis/