Venkatasamy vs Indirani
2022 Latest Caselaw 8890 Mad

                                                                                    S.A.No.1122 of 2012

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 27.04.2022

                                                        CORAM

                           THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

                                                 S.A.No.1122 of 2012
                                                         and
                                                  M.P.No. 1 of 2012

                Venkatasamy                                             ...      Appellant

                                                           Vs

                Indirani                                                ...      Respondent

                PRAYER : Second Appeal filed under Section 100 of C.P.C., to set aside the
                Judgment and Decree dated 20.06.2012 passed in A.S.No.42 of 2011 on the file
                of the Subordinate Judge, Tiruvannamalai confirming the Judgment and Decree
                dated 23.12.2010 passed in O.S.No.67 of 2008 on the file of the Principal
                District Munsif, Tiruvannamalai.
                                       For Appellant               : Mr.A.Gowthaman
                                       For Respondent              : Mr.S.Chandrasekaran


                                                      JUDGMENT

The plaintiff is the appellant in the second appeal.

2. The plaintiff filed the suit seeking for the relief of permanent

injunction.

https://www.mhc.tn.gov.in/judis 1 of 6 S.A.No.1122 of 2012

3. The case of the plaintiff is that he is the owner of the property that

has been described in the 'A' Schedule of the suit property. According to the

plaintiff, he is having access to his property only through the 'B' Schedule

property and this property has been categorised as a Government Poramboke.

The grievance of the plaintiff is that the defendant attempted to put up a wall in

the 'B' Schedule property and thereby prevent the plaintiff from having access to

his property in the 'A' Schedule. Hence, the suit came to be filed seeking for the

relief of permanent injunction.

4. The defendant filed the written statement. She took a categoric stand

that the plaintiff has intentionally described the 'B' Schedule property as if it is a

pathway and whereas it is not a pathway as claimed by the plaintiff. The

further defence taken by the defendant is that the plaintiff has never enjoyed the

'B' Schedule property or used it as pathway to his property and the suit itself has

been filed only to prevent the defendant from putting up a construction.

Accordingly, the defendant sought for the dismissal of the suit.

5. Both the Courts below, after considering the facts and circumstances

of the case and on appreciation of oral and documentary evidence, concurrently https://www.mhc.tn.gov.in/judis 2 of 6 S.A.No.1122 of 2012

held against the plaintiff and dismissed the suit. Aggrieved by the same, the

plaintiff has filed this second appeal.

6. When the matter was taken up for hearing, the learned counsel for

the appellant submitted that he has already given change of vakalat long back

and also handed over the papers to the appellant. Therefore, the learned

counsel for the appellant submits that he no longer represents the appellant.

7. The second appeal is yet to be admitted and therefore this Court

wanted to see if any substantial question of law is involved in the second appeal,

so that the same can be framed and notice can be sent to the appellant. To

determine the same, this Court carefully went through the materials available on

record and the findings of both the Courts below.

8. It is seen from the findings of the both the Courts below that the

plaintiff had purchased the property in the 'A' Schedule only in the year 2002.

The suit was filed in the year 2008. Hence, the claim made by the plaintiff as if

he has been using the 'B' Schedule property for more than 20 years to access his

property as pathway was found to be false. That apart, both the Courts also

found that the State has not been made as a party in the suit when admittedly https://www.mhc.tn.gov.in/judis 3 of 6 S.A.No.1122 of 2012

the 'B' Schedule property is a Poramboke land. This was also put against the

plaintiff. Thus both the Courts below found that the plaintiff did not establish

his right of pathway in the 'B' Schedule property. Apart from that, the plaintiff

was claiming for an easement of necessity in this case and while doing so the

actual owner of the property was not made as a party. Even otherwise, the

plaintiff did not establish that there was no other alternative way available to

access his property except the 'B' Schedule property.

9. In the considered view of this Court, the findings rendered by both

the Courts below are factual in nature and this Court does not find any

perversity in those findings. In any event, no substantial question of law is

involved in the second appeal.

10. In the result, the second appeal is dismissed. Consequently

connected miscellaneous petition is closed. Considering the facts and

circumstances of the case, there shall be no order as to costs.

27.04.2022 Index :Yes/No Internet :Yes/No Lpp

https://www.mhc.tn.gov.in/judis 4 of 6 S.A.No.1122 of 2012

To

1. The Subordinate Judge, Tiruvannamalai

2. The Principal District Munsif, Tiruvannamalai.

https://www.mhc.tn.gov.in/judis 5 of 6 S.A.No.1122 of 2012

N.ANAND VENKATESH.,J

Lpp

S.A.No.1122 of 2012 and M.P.No. 1 of 2012

27.04.2022 https://www.mhc.tn.gov.in/judis 6 of 6