Madras High Court
Meenambigai vs K.Bakkiam on 7 December, 2023
Author: P.T.Asha
Bench: P.T.Asha
S.A.No.870 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T.ASHA
S.A.No.870 of 2023
and
C.M.P.No.27442 of 2023
Thangapandian (Died)
1. Meenambigai
2. T.Rajaram
3. T.Kavitha ... Appellants
-Vs-
K.Bakkiam ... Respondent
Prayer:- This Second Appeal filed under Section 100 of the Code of Civil
Procedure Code,1908, to set aside the judgement and decree dated
24.03.2023 on the file of the III Additional Sub Court, Coimbatore,
passed in A.S.No.32 of 2021, confirming the judgment and decree dated
10.09.2019 passed by the learned II Additional District Munsif,
Coimbatore, in O.S.No.2777 of 2008.
For appellants : Mr.P.G.Thiyagu
For respondent : No appearance
JUDGMENT
The defendants, who have lost in both the Courts below, have
filed the above Second Appeal.
https://www.mhc.tn.gov.in/judis
2. The facts are set out hereinbelow with the parties being
referred to same ranking as before the learned II Additional District
Munsif, Coimbatore, where a suit in O.S.No.2777 of 2008 was
instituted by the plaintiff.
FACTS OF THE CASE:
2.1. The above suit was filed for permanent injunction
restraining the defendants, their men, agents and servants from in
any manner preventing the user of the 4 ½ feet wide east-west
common pathway which is the access for the plaintiff to reach the
suit property by encroaching or blocking the said pathway.
2.2. It is the case of the plaintiff that she is the absolute
owner of the suit schedule property which is a vacant site that has
been described as item 1 and another property as item 2 which is a
R.C.C. building. She had purchased this property under a
registered sale deed dated 26.06.1991 from one R.Govindaraj.
https://www.mhc.tn.gov.in/judis
After the purchase of the suit schedule property, the plaintiff had
put up a construction after obtaining necessary approval from the
Town Panchayat and she is in possession and enjoyment of the
same.
2.3. The plaintiff had also mutated the revenue records in
her name and has had the house tax receipts, electricity connection,
etc., transferred in her name. The plaintiff had also sold the
property described as item 2 in her sale deed to some other party.
2.4. The defendants 1 and 2 are the subsequent purchasers
of the property situated on the west and north side of the suit
schedule property which they had jointly purchased under the sale
deed dated 25.09.1996. They had purchased the property as a
vacant site. This purchase was after the purchase and construction
of house done by the plaintiff.
https://www.mhc.tn.gov.in/judis
2.5. It is the case of the plaintiff that there is a 4 ½ feet wide
east – west common pathway situated on the northern side of the
suit schedule property and there is a mention about this pathway in
the sale deed executed in favour of the plaintiff. The sale deed in
favour of the defendants 1 and 2 would also indicate the existence
of this 4 ½ feet wide east – west common pathway.
2.6. It is the case of the plaintiff that she and her family
members have been using this 4 ½ feet wide east – west common
pathway to reach the suit property. The right of the usage of the
said 4 ½ feet wide east – west common pathway is common to both
the plaintiff and the defendants. The plaintiff would further submit
that, of late, defendants 1 and 2, more particularly, in the last week
of November 2008 and finally on 01.12.2008, attempted to trespass
into the 4 ½ feet wide east – west common pathway on the northern
side of the suit property to block the plaintiff's access to her
property by putting up construction stating that this pathway is their
https://www.mhc.tn.gov.in/judis
absolute property.
2.7. The plaintiff would submit that the defendants 1 and 2
have no exclusive right over this pathway. The defendants 1 and 2
had attempted to purchase the property of the plaintiff which was
turned down by her. Therefore, in order to get even with the
plaintiff and to grab her property, the defendants are attempting to
encroach into the suit property. Therefore, the plaintiff has come
forward with the suit in question.
2.8. The defendants had filed a written statement inter alia
denying the claim of the plaintiff. It is case of the defendants that
the properties which have been purchased by the plaintiff as well as
the defendants originally belonged to one Ramasamy Naidu.
Thereafter, the property was alloted to the sons of Ramasamy
Naidu viz., Govindaraj, Selvaraj, Swaminathan and
Krishnamoorthy. The said property was sold by the above said
persons to the plaintiff and the defendants 1 and 2. There existed a
https://www.mhc.tn.gov.in/judis
4 ½ feet wide east – west common pathway to reach the defendants'
vendors' property and item 2 of the property which was sold by the
plaintiff. Since the suit property abuts the main road, this 4 ½ feet
wide east – west common pathway was shown as a
boundary/border. The plaintiff has an access to her property from
the main road.
2.9. The defendants would submit that the present plaintiff
is only attempting to harass the defendants. The plaintiff has
encroached a part of the property belonging to the defendants' son
Rajaram and without impleading Rajaram as a party to this suit, the
suit is liable to be dismissed. The averments made in paragraph
no.5 of the plaint are denied as false and imaginary. The defendants
and the purchaser of item 2 of the suit property have constructed a
building in their entire property and they are living peacefully for
14 years without any hindrance. The east-west pathway has been
used only by the defendants for 14 years. They have constructed a
gate and were parking their vehicles. Therefore, they sought for the
https://www.mhc.tn.gov.in/judis
dismissal of the suit as proper parties have not been impleaded and
there is no cause of action. They therefore, prayed that the suit be
dismissed.
TRIAL COURT:
3. The Trial Court has framed the following issues:
“1.Whether the plaintff is in common
enjoyment of 4 ½ feet breadth East West pathway
situated on the northern side of the suit property?
2.Whether the suit is bad for non joinder of
proper and necessary party?
3.Whether the plaintiff is entitled to get the
relief of permanent injunction as prayed for in the
plaint?
4.To what other relief the parties to the suit
are entitled to and the cost of the suit?”
4. The plaintiff has examined herself as P.W.1 and
marked Exs.A1 to A9. Exs.C1 and C2 were also marked. On the
side of the defendants, the third defendant has examined himself as
https://www.mhc.tn.gov.in/judis
D.W.1 and marked Exs.B1 to B13.
5. The learned Judge, after taking into account the
schedule mentioned in Ex.A1 which is the sale deed under which
the plaintiff had purchased the property and Exs.B4, B5 and B6,
which are the sale deeds under which the defendants have
pruchased came to the conclusion that all the documents have
clearly mentioned the existence of the 4 ½ feet wide east – west
common pathway.
6. The Trial Court has also concluded that the suit is not
bad for nonjoinder of necessary parties and taking into account the
Advocate Commissioner's Report, ultimately, held that the suit
property is a common pathway for both the plaintiff as well as the
defendants.
https://www.mhc.tn.gov.in/judis
LOWER APPELLATE COURT:
7. Aggrieved by the said judgment and decree, the
defendants had preferred an appeal in A.S.No.32 of 2021 on the
file of the III Additional Subordinate Court, Coimbatore. The
learned Judge, by judgment and decree dated 24.03.2023, has
dismissed the appeal and confirmed the judgment and decree of the
Trial Court.
8. The Lower Appellate Court, being the final Court of
fact, has also examined the description of property in the schedule
given in the sale deeds under which the plaintiff and the defendants
had purchased their property. It is an admitted case that both the
plaintiff and the defendants had purchased the property from a
common owner.
9. Aggrieved by this, the defendants have come forward
with this second appeal.
https://www.mhc.tn.gov.in/judis
10. Heard the learned counsel appearing for the appellants.
DISCUSSION:
11. Mr.P.G.Tiyagu, learned counsel appearing on behalf of
the appellants would contend that the plaintiff has a direct access to
the Main Road and therefore, she does not require the suit
pathway. Further, Item 2 of the suit property has been sold by her
and her tenant has no grievance. However, this Court has taken into
consideration the description of the property in each of the sale
deeds; i.e., Exs.A1 and B4 to B6. All these sale deeds in their
schedules describe the existence of this 4 ½ feet wide east – west
common pathway for which this suit has been filed.
12. That apart, D.W.1, during his cross-examination, would
submit that the permission for putting up the building has been
granted and in this, there is a reference to this 4 ½ feet wide east –
west common pathway and he would also admit that in the partition
https://www.mhc.tn.gov.in/judis
deed executed by Ramasamy and others, the 4 ½ feet wide east –
west common pathway is mentioned as a general pathway.
13. Both the Courts below have rightly taken into
consideration the overwhelming documentary evidence to show the
existence of the pathway. Further, once the pathway is provided
under the sale deed of each party, the defendants cannot be heard to
say that the 4 ½ feet wide east – west common pathway does not
belong to the plaintiff. Both the Courts have extensively considered
the evidence and decreed the suit. I see no reason to hold
otherwise.
Accordingly, this second appeal stands dismissed as it does
not contemplate any substantial question of law. Consequently,
connected C.M.P. stands closed. No costs.
07.12.2023
https://www.mhc.tn.gov.in/judis
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
ssa
To
1.The III Additional Sub Judge, Coimbatore.
2.The II Additional District Munsif, Coimbatore.
3.The Section Officer, V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
https://www.mhc.tn.gov.in/judis
07.12.2023
https://www.mhc.tn.gov.in/judis
