Madras High Court
N.Perinbam vs N.Thangathurai on 10 March, 2022
S.A.(MD)No.322 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.322 of 2010
and
M.P.(MD)No.2 of 2010
N.Perinbam ... Appellant
Vs.
1.N.Thangathurai
2.N.Selvaraj
3.N.Yusurajan
4.N.Yesubalan ... Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree dated 24.06.2005 in O.S.No.690
of 2001 on the file of the II Additional District Munsif Court, Nagercoil
as confirmed in A.S.No.20 of 2007 dated 05.12.2008 on the file of the
Principal Sub Court, Nagercoil.
For Appellant : Mr.S.Jayakumar
For Respondents : Mr.A.Arumugam for R3
No appearance for R1 & R4
1/8
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.322 of 2010
JUDGEMENT
The plaintiff in O.S.No.690 of 2001 on the file of the II Additional
District Munsif Court, Nagercoil is the appellant in this second appeal.
The plaintiff filed the said suit seeking the relief of declaration that he is
entitled to use the plaint schedule pathway without any hindrance and for
permanent injunction restraining the defendants from obstructing the
same. The third defendant filed written statement controverting the
plaint averments. Based on the divergent pleadings, the trial Court
framed the necessary issues.
2.The plaintiff examined himself as P.W.1 and Exs.A1 to A4 were
marked. The third defendant/Yesurajan examined himself as D.W1 and
no documentary evidence was marked on his side.
3.After consideration of the evidence on record, the trial Court
dismissed the suit by judgment and decree dated 24.06.2005. Aggrieved
by the same, the plaintiff filed A.S.No.20 of 2007 before the Principal
Sub Court, Nagercoil. By the impugned judgment and decree dated
05.12.2008, the first appeal was dismissed and the decision of the trial
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S.A.(MD)No.322 of 2010
Court was confirmed. Challenging the same, this second appeal came to
filed.
4.The second appeal was admitted on 12.04.2010 on the following
substantial questions of law:-
“1.Whether the Courts below are correct in
holding that the appellant/plaintiff failed to prove that he
has got a right by way of a pathway while the pathway
has been admitted by D.W.1 in his evidence? and
2.Whether the Courts below are right in holding
that the appellant/plaintiff is not entitled to declaration
in the absence of proof of pathway which is admitted by
D.W.1?”
5.The learned counsel for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the
appellant and set aside the impugned judgments and decrees and decree
the suit as prayed for.
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S.A.(MD)No.322 of 2010
6.Per contra, the learned counsel for the contesting respondent
submitted that no substantial question of law arises for consideration.
7.I carefully considered the rival contentions and went through the
evidence on record. There is no dispute that the plaintiff/Perinbam and
the defendants 1 to 4 are the sons of one Nallsiromonythurai. The father
had executed deeds of settlement in favour of all the children. Ex.A.1
dated 06.12.1999 is the settlement deed executed in favour of the
plaintiff. The description of the property settled in favour of the plaintiff
is quite significant. The property admittedly is bounded on the east by
the sites belonging to Selvaraj and Yesurajan, on the south and west by
the sites belonging to Yesurajan and on the north by the site belonging to
one Thangarajaiah. The property settled in favour of the plaintiff is a
very old house in which all the parties were originally residing together.
Obviously, the said house ought to have had access. But unfortunately in
Ex.A1, no such right of access has been specifically reserved or
conferred in favour of the plaintiff. The property settled in favour of the
plaintiff is virtually land locked. The contesting respondent's property is
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S.A.(MD)No.322 of 2010
shown as the southern, eastern and western boundaries. As rightly
pointed out by the learned counsel for the contesting respondent, if the
plaintiff's case is that he requires right of access as a matter of necessity,
then an appropriate suit for easement of necessity must have been filed.
In that event, he would have conceded the title of the contesting
defendant and sought a right of pathway accordingly. But there is no
such pleading. Even an advocate commissioner was not appointed. He
would also state that the plaintiff could not have insisted that the
pathway required for him should measure 10 feet. Thus, there are
several formidable difficulties. Though I am more than satisfied that the
appellant has to be given a right of pathway, I am not in a position to
demarcate the same in this second appeal for more reasons than one. If
an advocate commissioner had been appointed and his plan is available,
then I would have definitely provided a pathway for the plaintiff. The
plaint filed by the appellant suffers from formal defect. The learned
counsel for the appellant is unable to withdraw the second appeal
because he is not having instructions from the client. Therefore, even
while dismissing the second appeal, in view of the formal defect from
which the plaint was suffering, I permit the plaintiff to file a fresh suit
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S.A.(MD)No.322 of 2010
seeking the right of pathway by invoking the right of easement of
necessity.
8.The second appeal is dismissed with the aforesaid liberty. No
costs. Consequently, connected miscellaneous petition is closed.
10.03.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
1.The Principal Sub Court,
Nagercoil.
2.The II Additional District Munsif Court,
Nagercoil.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.322 of 2010
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.322 of 2010
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.322 of 2010
10.03.2022
https://www.mhc.tn.gov.in/judis
