Madras High Court
Veerappan Chettiar (Died) vs Sankaran Chettiar on 29 March, 2022
1 S.A.(MD)No.565 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.565 of 2010 and
M.P.(MD)No.3 of 2010
1. Veerappan Chettiar (Died) ... Appellant / Appellant /
1st Defendant
2. Maruthappa Chettiar (Died)
3. M.Maragatham
4. M.Karuppu Chettiar
5. Meenakshi Chettiar
6. M.Vadivelu Chettiar
7. M.Veerappan Chettiar (Died)
8. Dhanalakshmi ... Appellants 3 to 8 and LRs. of the
2nd appellant / 2nd defendant
9. V.Thangammal
10.V.Arjunan
11. V.Raman
12. V.Kulanthaivelu
(Appellants 9 to 12 were suo motu impleaded as LRs. of the
deceased 1st appellant vide Order dated 04.03.2022)
13. V.Rukmani
(13th appellant was suo motu impleaded as LRs. Of the deceased 7th
appellant vide Order dated 04.03.2022)
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2 S.A.(MD)No.565 OF 2010
Vs.
1. Sankaran Chettiar
2. Meenakshi Ammal
3. Velayee Ammal
4. Kaveri
5. Murugesan
6. Maruthai
7. Krishnan ... Respondents / Respondents /
Plaintiffs 1, 2, 4 to 8
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Decree and Judgment dated 27.11.2008
made in A.S.No.143 of 2004 on the file of the I Additional
Subordinate Judge, Thiruchirappalli, confirming the Decree
and Judgment dated 10.03.2004 made in O.S.No.298 of 1996
on the file of the District Munsif, Musiri.
For Appellants : Mr.P.Thiagarajan
For R-1 to R-7 : Mr.K.Govindarajan
***
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3 S.A.(MD)No.565 OF 2010
JUDGMENT
The defendants in O.S.No.298 of 1996 on the file of
the District Munsif Court, Musiri, filed this second appeal.
2. During the pendency of the second appeal, they
passed away and their legal heirs were brought on record.
3. The suit was filed by the respondents herein for
declaration that they are entitled to use the suit pathway
measuring 6 feet wide east-west and 100 feet long
north-south and for permanent injunction restraining the
defendants from interfering with the said right. The
defendants filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial Court
framed the necessary issues. On the side of the plaintiffs, the
first plaintiff examined himself as P.W.1 and the husband of
the second plaintiff was examined as P.W.2. Ex.A.1 to Ex.A.32
were marked. The first defendant examined himself as D.W.1
and the second defendant's son was examined as D.W.2.
Ex.B.1 to Ex.B.9 were marked. An Advocate Commissioner was
appointed and his report and plan were marked as Ex.C.1 and
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Ex.C.2. After consideration of the evidence on record, the trial
Court by judgment and decree dated 10.03.2004 decreed the
suit as prayed for. Aggrieved by the same, the defendants filed
A.S.No.143 of 2004 before the I Additional Sub Judge,
Thiruchirappalli. The first Appellate Court by the impugned
judgment and decree dated 27.11.2008, confirmed the
decision of the trial Court and dismissed the appeal.
Challenging the same, this second appeal came to be filed.
4. Though the second appeal was filed way back in
the year 2009, only notice was ordered and it has not been
admitted till date.
5. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to frame substantial
questions of law and admit the second appeal and take up the
matter for disposal later.
6. Per contra, the learned counsel appearing for the
respondents submitted that no substantial question of law
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arises for consideration and pressed for dismissal of the
second appeal.
7. I carefully considered the rival contentions and
went through the evidence on record.
8. There is no dispute that the properties belonging to
the plaintiffs and defendants, originally belonged to Suppan
Moopan. The suit pathway lies in between the properties
purchased by the plaintiffs and the defendants. According to
the plaintiffs, they are entitled to use the suit pathway for
ingress and egress. The stand of the defendants is that the suit
pathway was purchased by them and that it is meant only for
their exclusive use. The plaintiffs had purchased the property
lying to the east of the suit pathway under Ex.A.1 and Ex.A.2
dated 20.08.1955 and 25.11.1955. The defendants had
purchased the property to the west of the suit pathway under
Ex.B.1 dated 17.08.1955. Ex.B.2 does not relate to the issue
on hand. A reading of Ex.A.1 would show that the eastern
portion has been mentioned as a pathway. Of course, it is
mentioned as a road. Both the Courts below have given a
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finding that the expression ' Raja Veethi ' was mentioned by
mistake and that it should be understood as ' Veethi
' (pathway). In the Advocate Commissioner's report, one can
note that the electricity connection for the plaintiffs' use have
been laid across the suit pathway. As already pointed out, the
plaintiffs purchased the suit property way back in the year
1955. They have also dealt with the properties purchased by
them under Ex.A.3 dated 03.04.1965 and Ex.A.5 dated
16.09.1972. In those documents, the suit pathway has been
specifically referred to. That is why, the Courts below have
concurrently found that the suit pathway has been enjoyed by
the plaintiffs for more than thirty years. The suit was filed only
in the year 1996. The Courts below have also given a finding
that only through the suit pathway, the plaintiffs can reach
their respective houses and that they did not have any
pathway on the eastern side. Therefore, the existence of the
suit pathway and the right of the plaintiffs to use the same
have been concurrently found in favour of the respondents
herein by the Courts below while exercising jurisdiction under
Section 100 CPC, I do not want to interfere. No substantial
question of law arises for determination.
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9. This second appeal is dismissed. No costs.
29.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The I Additional Subordinate Judge,
Thiruchirappalli.
2. The District Munsif,
Musiri.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.565 of 2010
29.03.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
