Madras High Court
S.Kamalakannan vs Manikkam on 5 April, 2023
S.A.No.66 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05..04..2023
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal No.66 of 2013
and
M.P.No.1 of 2013
1. S.Kamalakannan
2. Balaraman
..... Appellants
-Versus-
1. Manikkam
2. Rajakili
3. Peedhambaram
4. Jayakanthan
..... Respondents
Appeal filed under Section 100 of C.P.C. against the judgment and
decree dated against the judgement and decree dated 27.08.2012 made in
A.S.No.52 of 2008 by the learned Subordinate Judge, Tirupattur, confirming
the judgement and decree dated 28.04.2008 made in O.S.No.129 of 2003 by the
learned District Munsif, Tirupattur, Vellore District.
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For Appellants : Mr.N.Gnanalingam for
Mr.K.Thiruvalluvan
For Respondents : Mr.PA.Suresh Kumar for
RR1, 2 & 4
JUDGEMENT
Challenging the concurrent judgement and decree of the courts below,
the defendants are before this court with the present Second Appeal.
2. Heard the learned counsel for the appellants.
3. The property in dispute is a common passage in S.No.24/6D situated
at Yelagiri, Tirupathur Taluk, Vellore District. The plaintiffs and the
defendants are the owners of the properties abutting the common passage. On
account of the activities of the defendants which tend to interfere with the use
of the common passage, the present suit for bare injunction was presented.
4. The defendants admitted to the common passage. However, their claim
is that the common passage extends beyond the land situated in S.No.24/6C,
which is the subject matter of ownership by the plaintiffs.
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5. According to the learned counsel for the appellants, the plaintiffs
cannot claim the right over the common passage beyond S.No.6/C as they have
no right or any land over the property which is abutting the common passage in
S.No.24/6D. The trial court as well as the first appellate court have come to the
conclusion that the property should be maintained as a common passage and
that the revenue proceedings cannot be transfer tittle to either plaintiffs or to
the defendants.
6. I have carefully perused the judgement of the trial court as well as the
first appellate court. This court did not admit the second appeal, but had only
ordered notice of motion. It is not disputed by the learned counsel for the
appellants that the land in S.No.24/6D is a common passage. The only issue
is, that beyond the properties situated in S.No.24/6C as the plaintiffs did not
have any land, they have no right to use that common passage. I am unable to
agree with the said contention. The status of the common passage should be
maintained as it is by both parties. It matters not whether the plaintiffs own
properties beyond a particular point. The predecessor in title of both the
plaintiffs as well as the defendants had set apart S.No.24/6D as common
passage and therefore, the same shall remain as one. I do not find any reason to
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differ with the findings of the trial court as well as the first appellate court. I am
not inclined to admit this Second Appeal. Consequently, the judgement and
decree of both the courts below are liable to be confirmed.
In the result, this Second Appeal is dismissed and the concurrent
judgement and decree of both the courts below are confirmed. As I did not call
respondents to argue the appeal, there shall be no order as to costs in this
appeal. Consequently, connected MP is closed.
05..04..2023
Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
kmk
To
1.The Subordinate Judge, Tirupattur, Vellore District.
2.The District Munsif, Tirupattur, Vellore District.
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V.LAKSHMINARAYANAN, J.
kmk
S.A.No.66 of 2013
05..04..2023
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