M.J.T.Philip vs Pransis
2021 Latest Caselaw 11378 Mad

                                                                           S.A.(MD)No.318 of 2021


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 02.06.2021

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                              S.A.(MD)No.318 of 2021

                     1.M.J.T.Philip
                     2.Mary Jayakumari                                 ... Appellants
                                                        Vs.

                     1.Pransis
                     2.Pushpalatha                                     ... Respondents


                     PRAYER: Second Appeal filed under Section 100 of the Civil
                     Procedure Code, to set aside the judgment and decree dated
                     11.02.2021 passed by the Sub Court, Padmanabapuram in A.S.
                     No.43 of 2018 confirming the judgment and decree dated
                     13.06.2018 passed by the Additional District Munsiff Court,
                     Padmanabapuram in O.S.No.88 of 2015 and allow this second
                     appeal.


                                    For Appellants     : Mr.K.Samidurai



                                                     JUDGMENT

The plaintiffs, who lost before both the Courts below, have

filed the above second appeal.

https://www.mhc.tn.gov.in/judis/ S.A.(MD)No.318 of 2021

2.The appellants/plaintiffs filed the suit for the relief of

declaring their right of pathway and for permanent injunction. The

appellants had placed their claims by heavily relying upon the sale

deed executed in their favour, which was marked as Ex.A1. The

specific case of the appellants is that “B” schedule property is the

only access to their property situated in “A” schedule property and

the same was in enjoyment for more than 33 years without any

interruption. In short, the appellants were claiming an

easementary right of way.

3.The Courts below on appreciation of the oral and

documentary evidence, came to a categorical conclusion that even

as per the sale deed, which was marked as Ex.A1, there was

absolutely no indication that “B” schedule property was the

pathway through which “A” schedule property is being accessed.

This is a very crucial finding since the appellants are placing their

rights only on this title document.

4.The Courts below have also found that the appellants did

not recognize the dominant tenement of the respondents and

without such recognition, an easementary right cannot be claimed

https://www.mhc.tn.gov.in/judis/ S.A.(MD)No.318 of 2021

by the servient tenement. The appellants having denied the right

of the respondents in the subject property, cannot claim the right of

easement as rightly held by the Courts below. Apart from the

above said facts, there is an alternative pathway available, which

was even indicated in Ex.A1 and under such circumstances, the

appellants will not be entitled to claim an easementary right on the

ground of necessity.

5.This Court does not find any substantial question of law

involved in the present second appeal and this Court finds that both

the Courts below have properly appreciated the oral and

documentary evidence and rendered findings, which do not require

the interference of this Court.

6.In the result, this second appeal is dismissed. No costs.

02.06.2021 Index: Yes/No Internet: Yes/No gns NOTE: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

https://www.mhc.tn.gov.in/judis/ S.A.(MD)No.318 of 2021

N.ANAND VENKATESH, J.,

gns

To

1.The Sub Court, Padmanabapuram.

2.The Additional District Munsiff Court, Padmanabapuram.

S.A.(MD)No.318 of 2021

02.06.2021

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