Madras High Court
S.Perumal Thevar vs D.Palaniachiammal @ Palaniammal on 22 February, 2022
S.A.(MD)No.120 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.120 of 2010
and
M.P.(MD)No.1 of 2010
S.Perumal Thevar ... Plaintiff / Appellant / Appellant
-Vs-
D.Palaniachiammal @ Palaniammal ... Defendant / Respodnent /
Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the decree and judgment of the leanred Additional Sub
Court, Tirunelveli, dated 22.07.2009 in A.S.No.22 of 2009 confirming the
decree and judgment of the learned Principal District Munsif Court,
Tirunelveli dated 02.02.2009 in O.S.No.31 of 2007.
For Appellant : Mr.Ananth C.Rajesh
For Respondent : Mr.S.Saji Bino
for Mr.R.Appavu Rethinam
JUDGMENT
The plaintiff in O.S.No.31 of 2007 on the file of the Principal District
Munsif, Tirunelveli is the appellant in this second appeal.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.120 of 2010
2. The said suit was filed for declaration that the second schedule
property is a common lane and for permanent injunction restraining the
defendant from constructing any wall across the same. The defendant filed
written statement denying the allegation that she proposed to put up any
wall across the suit second schedule property. The defendant also took a
stand that suit second schedule property was never a common lane. Based
on the rival pleadings, as many as three issues were framed. The primary
issue was whether the suit second schedule property is a common lane. On
the side of the plaintiff, four witnesses were examined. Ex.A1 to Ex.A17
were marked. The defendant examined herself as D.W.1 and one
Isakkithevar was examined as D.W.2. Ex.B1 to Ex.B4 were marked. An
advocate commissioner was appointed and his report and plan were marked
as court exhibit 1 and 2. After consideration of the evidence on record, the
trial court by judgment and decree dated 02.02.2009 dismissed the suit.
Aggrieved by the same, the plaintiff filed A.S.No.22 of 2009 before the
Additional Sub Court, Tirunelveli. By the impugned judgment and decree
dated 22.07.2009, the first appellate court confirmed the decision of the trial
court and dismissed the appeal. Challenging the same, the second appeal
came to be filed.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.120 of 2010
3. After hearing the learned counsel on either side, I am satisfied that
the courts below have correctly answered the issue raised by the plaintiff.
There is absolutely no evidence to show that the suit second schedule
property was ever treated as a common lane. Be that as it may, the learned
counsel for the appellant pointed out that only through the suit second
schedule property, he can reach his house. In fact, the report of the
advocate commissioner also more or less supports the said stand. The
courts below have also pointed out that the defendant has not raised any
objection to the commissioner's report. But then, the plaintiff must have
filed a suit claiming easement of necessity. He should not have sought the
relief of declaration that the suit second schedule property is a common
lane. When the suit second schedule property is a common lane, the
members of the general public can also access the same. If the plaintiff had
sought the relief only for himself, the issue would have been differently
framed. Therefore, even while confirming the decision of the courts below
and dismissing the second appeal, liberty is granted to the appellant herein
to file a fresh suit claiming the relief of easement of necessity.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.120 of 2010
G.R.SWAMINATHAN.J.,
rmi
4. The second appeal is dismissed. No cost. Consequently,
connected miscellaneous petition is closed.
22.02.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Additional Sub Court, Tirunelveli.
2.The Principal District Munsif Court, Tirunelveli.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.120 of 2010
22.02.2022
https://www.mhc.tn.gov.in/judis
