Madras High Court
K.Muthusamy vs E.Palanisamy on 7 October, 2021
S.A.No.334 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.334 of 2012
and M.P.No.1 of 2012
K.Muthusamy ... Appellant
Vs.
E.Palanisamy ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the Judgment and Decree, dated 10.12.2011 in A.S.No.35 of 2010
on the file of the I Additional Sub Court, Salem, confirming the Judgment and
Decree, dated 21.12.2009 in O.S.No.748 of 2008 on the file of the I Additional
District Munsif, Salem.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.V.Sekar
JUDGMENT
The defendant is the appellant before this Court. Aggrieved over the
concurrent findings of the Courts below, the above second appeal has been
preferred.
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S.A.No.334 of 2012
2. The plaintiff filed a suit for declaration of his right over the suit
pathway shown as BD, attached to the plan and for mandatory injunction
directing the defendant to remove the barbed wire fence which interrupt the
pathway lying in BD points, failing which, to remove the same through the
process of Court. Originally, the entire extent of property was owned by one
Periyanna Gounder who has four sons namely Irusa Gounder, Arumuga
Gounder, Chinna Irusa Gounder and Chinnappa Gounder. The plaintiff
purchased the properties situate in Survey Nos.11/3 and 11/5 from Chinnappa
Gounder. The defendant purchased the properties situate in S.Nos.11/4 and
11/6 from Chinna Irusa Gounder. It is the case of the plaintiff that the access
to the plaintiff's land lies through the land which is purchased by the defendant.
The recital contained in the sale deeds specifically mentioned that the
purchasers are entitled to use the usual access for pathway and other
easementry right available on land. However, the defendant put up a barbed
wire fence taking away the access to the plaintiff's land. Aggrieved over the
same, the Panchayat was convened by an ex.MLA and a police complaint was
also lodged. Eventhough, the defendant initially compromised with the decision
of the Panchayat, violated the same later and hence the present suit has been
filed.
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S.A.No.334 of 2012
3. Denying the averments made in the plaint, the defendant / appellant
filed a written statement that he is the absolute owner of the properties in 11/2,
11/4, 11/6 and suppressing many facts, the plaintiff has come before this Court.
The plaintiff had never used any road and the pathway mentioned in the recital
of the Sale Deed is not the one mentioned by the plaintiff in his plan and the
sketch which are annexed with the plaint. The plaintiff has attempted to
encroach upon the land of the defendant without having any pathway right.
Therefore, he is not entitled to the relief of declaration.
4. At trial, the plaintiff has examined himself as P.W.1 and one
Seerangan has been examined as P.W.2. On the side of the defendant, the
defendant has examined himself as D.W.1 and one Senthilkumar has been
examined as D.W.2. Exs.A1 to A10 were marked on the side of the plaintiff
and Exs.B1 to B3 were marked on the side of the defendant.
5. The trial Court after framing appropriate issues and after elaborate
enquiry, decreed the suit in favour of the plaintiff. The first appellate Court on a
reappreciation of the evidence on record, has confirmed the decree and
Judgment passed by the trial Court. Aggrieved over the same, the defendant
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S.A.No.334 of 2012
preferred the above second appeal.
6. Upon notice, Mr.V.Sekar, learned counsel has entered appearance
on behalf of the respondent.
7. Today, when the matter is taken up for hearing, the learned counsel
for the appellant/defendant would submit that the Courts below have drastically
erred in decreeing the suit. Without there being any evidence of usual pathway,
Ex.A3, the plan and sketch of the plaintiff, showing the pathway, is not reliable.
In the event, the plaintiff failed to prove the existence of suit cart track and his
legal right to use the same, the declaration ought not to have been granted in
favour of the plaintiff. Even though, the respondent/plaintiff has filed an
application for appointment of a Commissioner which was dismissed for having
filed at belated stage, the plaintiff has not taken the matter on appeal.
Therefore, there is absolutely no proof with regard to the existence of the
pathway much less any legal right on the plaintiff to use the so called pathway.
Therefore, he contended that the Judgments and Decree of the trial Court to be
interfered with.
8. I have perused the sketch annexed along with the memorandum of
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S.A.No.334 of 2012
grounds in the second appeal. Admittedly, the properties belong to the
appellant/defendant lies at the east and western side and the plaintiff's property
lies in between the two properties of the defendants situate in S.No.11/4, 11/6
on the eastern and southern side. As admitted by both the parties, the property
was originally belonged to Periyanna Gounder and a joint family was using the
property with usual pathway (formal pathway) to have access to the entire land.
The plaintiff examined one of the grandson of the said Periyanna Gounder as
P.W.2 who deposed categorically that they had pathway to access the land from
East to West.
9. From the perusal of the sketch, it is quite obvious that without
crossing the land of the defendant in S.No.11/2, the plaintiff cannot have any
access to his land in S.No.11/5. The defendant put up a barbed wire fence
around the property purchased by the plaintiff in S.No.11/3. Therefore, it is
very clear that the access from 11/3 to 11/5 is denied to the plaintiff by virtue of
the barbed wire fence by the defendant in S.No.11/2. In this regard, it is also
relevant to note that the defendant himself admits that the access from
S.Nos.11/5 and 11/3 is through S.No.11/2. Therefore, the Courts below on
considering the recitals in the Sale Deeds, actual topography of land in question
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S.A.No.334 of 2012
and also the evidence of P.W.2 who had sufficient knowledge about the land
owned by his grandson, had come to the conclusion that the plan showing BD
points is the access to the plaintiffs property. Admittedly, the land situate in
S.No.11/2 belongs to the defendant and it should not be denied and accordingly,
the decree was granted by both the Courts below. Hence, I do not find any
discrepancy in the concurrent findings of the Courts below. I therefore conclude
that the objections raised by the appellant/defendant to use the pathway lies in
BD point by the plaintiff, is without any merits and the questions of law raised
in the memorandum of grounds of appeal are actually questions of fact, much
less they are not substantial questions of law.
10. In fine, the Second Appeal stand dismissed. However, there shall
be no order as to costs. Consequently, connected miscellaneous petition is
closed.
07.10.2021
vum
Index : Yes/No
Speaking order / Non speaking order
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S.A.No.334 of 2012
To
1.The I Additional Sub Court, Salem.
2.The I Additional District Munsif, Salem.
3. The Section Officer,
VR Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
S.A.No.334 of 2012
M. GOVINDARAJ, J.
vum
S.A.No.334 of 2012
and M.P.No.1 of 2012
07.10.2021
https://www.mhc.tn.gov.in/judis
