Madras High Court
M. Melagan vs N.Joghee Gowder ...Plaintiff/ on 22 June, 2021
S.A.No.815 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.815 of 2008
1.M. Melagan
2.M.Jeganathan
3.M. Vasudevan
4.M.Selvan
5.L.Sivaraj ...Defendants/Appellants/Appellants
Vs.
N.Joghee Gowder ...Plaintiff/Respondent/Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 29.11.2004
made in A.S.No.54 of 2004 on the file of the learned Sub Judge, Ooty,
confirming the Judgment and Decree dated 21.06.2004 made in
O.S.No.89 of 2002 on the file of the learned District Munsif, Coonoor.
For Appellant : Mr.T. Girish
1/8
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S.A.No.815 of 2008
JUDGMENT
The unsuccessful defendants before the Courts below are the
appellants before this Court. The parties are referred to in the litigative
status in which they had been referred before the learned District
Munsif, Coonoor in O.S.No.89 of 2002.
2.The facts in brief which are given rise to this Second Appeal
are as follows:
The plaintiff had filed the suit for a bare injunction in respect of
the properties measuring an extent of 1.47.91 Hec. comprised in
R.S.No.70/4, T.S.A3/5B in Coonoor Town, The Nilgiris within
specified boundaries. It was the case of the plaintiff that under the Sale
Deed 16.04.1958, he along with 4 others had became entitled to an
extent of 38.74 and 3/4 acres in Survey No.70, Coonoor Town. There
was an oral portion between the parties and under these, the plaintiff
was allotted an extent of 10.75 acres which is sub divided to
R.S.No.70/4. From the date of the oral partition, the plaintiff has been
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S.A.No.815 of 2008
put in physical possession of the same. Thereafter, in the year 1970,
the plaintiff and his brother had entered into an oral partition and he
had been allotted the suit properties measuring an extent of 3.65 acres.
The plaintiff developed the said lands into a Tea Garden and has been
in exclusive possession and enjoyment of the same. The lands were
later assigned in a new Survey Number consequent to the re-survey and
allotted T.S.No.A.3/5B. While so, the defendants, who have no
semblance of right over the suit property on 20.08.2002, attempted to
trespass into the properties. Their intention appears to be grab the suit
properties. Therefore, the plaintiffs have come forward with the instant
suit.
3.In defence, the defendants have stated that there was an access
to the tea factory and the house. From the forest dale road running East
to West measuring 10 feet in width, this road has been in existence of
1985 and was used as an access by the partners of the erstwhile firm,
namely, Sri Dhanalakshmi Tea Factory, the defendants herein. This
access is sought to be restricted by the plaintiff in the guise of the
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S.A.No.815 of 2008
present suit. Once injunction is granted the plaintiff would effectively
cut off the access from the road to the factory and the house. The
defendants would submit that the cause of action pleaded is totally false
since the pathway which is being used by the defendants and others
have been an existence since 1985 without any objection. Therefore,
they sought for dismissal of the suit.
4.The Written Statement was filed by the 4th defendant and
adopted by the defendants 1, 2 and 5.
5.The learned District Munsif, Coonoor, had framed an issue as
to whether the plaintiff was entitled to decree for injunction as prayed
for?
6.The learned District Munsif, Coonoor had considered the
Commissioner's Report which would show the existence of the
pathway. However, considering the fact that the defendants had
admitted using the pathway without the permission of the plaintiff, the
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S.A.No.815 of 2008
learned Judge has granted injunction as prayed for. The said Judgment
was challenged by the defendants in A.S.No.54 of 2004 on the file of
the learned Sub Judge, The Nilgiris. The Appellate Court also
confirmed the Judgment and Decree of the trial Court. Challenging the
same, the appellants are before this Court.
7.Though the Second Appeal had been filed as early as in the
year 2008 it had been adjourned and has come up for admission only
now.
8.Mr.T.Girish, learned counsel arguing on behalf of the
appellants would submit that having confirmed the existence of the
pathway, the Court below ought to have followed it up by granting an
injunction with reference to the suit property barring the extent being
used as the pathway. He would further argue that this is the only
access available to the defendants and therefore, the Judgment and
Decree of the Courts below should be set aside.
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S.A.No.815 of 2008
9.The only defence put forward by the defendants/appellants is
that they are using a portion of the suit property as a pathway and that
the Courts below ought to have considered the easement of necessity.
However, the defendants have not filed their counter claim with
reference to the same. Though in their Written Statement, they would
contend that a portion of the suit property is being used as a pathway
they have not proved the usage for a continuous period and that it was
with the consent of the plaintiff. Considering the fact that the
defendants have themselves admitted the right of the plaintiff to the suit
property, their usage of the portion of the same without the permission
of the plaintiff would definitely amount to be a trespass. That apart, the
defendants have themselves admitted that this pathway has been fenced
all around and therefore, the defendants are not using the said pathway.
10.In view of the above, I do not find any ground for interfering
with the concurrent Judgment and Decree of the Courts below. The
appellants have not made out any Substantial Questions of Law
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S.A.No.815 of 2008
warranting interference to the Judgment and Decree of the Courts
below.
In fine, the Second Appeal is dismissed, however, there shall be
no orders as to costs.
22.06.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Sub Judge,
Ooty.
2.The District Munsif,
Coonoor.
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S.A.No.815 of 2008
P.T. ASHA, J,
mps
S.A.No.815 of 2008
22.06.2021
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