Madras High Court
K.Ravichandran vs K.Subramaniam on 25 November, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :25.11.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.822 of 2021
and C.M.P.No.15898 of 2021
K.Ravichandran ...Appellant
Vs.
K.Subramaniam ...Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 20.12.2019 made in
A.S.No.49 of 2015 on the file of the learned Principal District Court, Ariyalur
confirming the judgment and decree dated 16.06.2014 made in O.S.No.93 of
2008 on the file of the learned District Munsif Court, Jayankondam by
allowing this Second Appeal.
For Appellant : Mr.N.Manoharan for T.K.S.Gandhi
JUDGMENT
This Second Appeal is directed against the judgment of the learned
Principal District Court, Ariyalur in A.S.No.49 of 2015 confirming the
judgment of the learned District Munsif Court, Jayankondam in O.S.No.93 of
2008.
https://www.mhc.tn.gov.in/judis
2. The respondent as a plaintiff filed the suit against the appellant
seeking the relief of declaration of his right to enjoy the suit passage as an
easementary right.
3. The plaint averment in brief reads as follows:
The appellant and respondent are brothers. The suit properties
(passage) are shown as ABCD and EFGH. Apart from appellant/respondent,
they have one more brother Rajendran. There was a family partition between
the brothers on 05.05.1981. After the partition they are enjoying their
respective portions independently. The portions shown as JABGHI measures
26cents and its survey number is No.345/24. The item No.1 shown in the
partition deed measuring 0.6cents was allotted to respondent, item No.2
measuring 0.6cents was allotted to Kattabomman and item No.3 and 4 is a
house. There is an entrance on the South of this house. Item No.3, half of the
house portion, backyard portion was allotted to the respondent. Item No.4
house and the portions in front and back of the house measuring 0.4cents was
allotted to Kattabomman. Item No.5 measuring 0.5cents was allotted to
Ravichandran. Item No.2 belongs to Kattabomman was purchased by
appellant/respondent. The ABCD passage measures 10feet breadth and 45feet
https://www.mhc.tn.gov.in/judis
length. It extends to item No.2. Jayamkondan to Andimadam is a tar road.
These passages are essentially required for the beneficial enjoyment of the
respondent's property. Except these passages, there are no other passages to
reach the respondent's property. Appellant put up a shed in ABCD passage.
There was a complaint given to Andimadam Police Station on 19.03.2008.
Then, appellant removed the hut on his own. Appellant is trying to interfere
with respondent's peaceful enjoyment of the right of usage of these passages.
Therefore, the suit.
4. Appellant filed written statement denying the allegations made by
the respondent. The alleged hut is in existence for more than ten years. There
is no passage is in existence, as on ground, as claimed by the respondent. The
appellant has been using the place as cattle shed for more than ten years.
There are trees aged fifteen years. Respondent has to reach his property only
on the passage available on the South of the appellant's property. Till now,
they are using this southern passage to reach their property. There is no
necessity to go to his property through North and northern portion has not
been used as a passage so far. Only when there is no passage, there can be
claim of right of easement. When there is already a passage available on the
https://www.mhc.tn.gov.in/judis
South to reach the respondent's property, respondent cannot claim any right of
easement on the North of appellant's property.
5. On the basis of the above pleadings, the learned Trial Judge
framed the following issues,
i)Whether the plaintiff is entitled to claim the right of easement
and consequent relief of permanent injunction?
ii)What relief, if any the plaintiff is entitled?
6. During the trial PW1 to PW3 were examined on the side of the
plaintiff and Exhibits A1 to A7 had been marked. DW1 and DW2 were
examined on the side of the defendant and Exhibits B1 to B5 were marked.
7. On thorough appreciation of oral and document evidence
produced before the Trial Court, the learned District Munsif Judge,
Jayamkondam, found that there is no passage available in ABCD portion and
therefore, found that the respondent cannot claim the right of easement
through ABCD portion. On the same breadth, the learned District Munsif,
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Jayamkondam, found that there is a passage available in EFGH portion and
found in favour of the respondent and declared respondent's right of easement
to use EFGH portion to reach respondent's property.
8. Challenging the judgment of the learned District Munsif,
Jayamkondam, both the plaintiff and defendant preferred appeal. Defendant
preferred appeal in A.S.No.49 of 2015 challenging the declaration of
easementary right in EFGH portion and the plaintiff filed appeal in A.S.No.1
of 2016 challenging the denial of the relief of declaration of easementary
right in so far as ABCD portion is concerned. The learned Principal District
Judge, Ariyalur, on going through evidence, submissions of learned counsels
and judgment of the Court below found no reason to interfere with the
judgment of the learned District Munsif, Jayamkondam, and confirmed the
judgment of the learned District Munsif, Jayamkondam. Now the
appellant/defendant is before this Court by way of Second Appeal.
9. The learned counsel for the appellant submitted that though the
appellant admitted the right of passage to reach appellant's property on the
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South of appellant's property, his concern and grievance is that the respondent
is not entitled to the passage with the measurement of 13feet breadth and
32feet length in EFGH portion. It is submitted by him that EFGH portion does
not measure 13feet breadth and 32feet length. That apart, it is his submission
that there are four coconut trees to the height of 10 to 40feet. These coconut
trees situate 4feet on the North of southern extreme boundary of the appellant.
If the respondent is permitted to use the passage as claimed by him, there is a
possibility that respondent may seek to remove the coconut trees. This is the
only main and serious concern raised by the learned counsel for the appellant.
In view of the restricted hope in this appeal, this Court proceeds to dispose
this appeal.
10. It is seen from the written statement filed by the appellant that
appellant categorically admitted the existence of passage to reach the property
of the respondent on the southern side of appellant's property. The Advocate
Commissioner's report and plan are also clear that that there exist a passage
as EFGH portion. It shows that EF,GH measures 32feet in length, FG,EH
measures 13feet in length. Thus, it is established beyond any doubt that there
exist a passage in EFGH portion on the southern side of appellant's property
https://www.mhc.tn.gov.in/judis
to reach the respondent's property. Both the Courts below have considered the
evidence thoroughly and concurrently found that respondent is entitled to be
declared his right of easement in using the EFGH portion as the passage to
reach his property. There is no substantial question(s) of law involved in this
Second Appeal to entertain. This Court finds no reason to interfere with the
judgment of the learned Principal District Judge, Ariyalur in A.S.No.49 of
2015 confirming the judgment of the learned District Munsif, Jayankondam,
in O.S.No.93 of 2008.
11. Accordingly, this Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition stands closed.
25.11.2021
ep
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
https://www.mhc.tn.gov.in/judis
G.CHANDRASEKHARAN.J,
ep
To
The Section Officer,
VR Section,
High Court of Madras.
S.A.No.822 of 2021
and C.M.P.No.15898 of 2021
25.11.2021
https://www.mhc.tn.gov.in/judis
