Kalyani Pulavar vs Maria Michael Filix (Died)
2023 Latest Caselaw 13978 Mad

                                                                              S.A.No.139 of 2000



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED :      18.10.2023

                                                         CORAM

                                    THE HONOURABLE MRS.JUSTICE R.KALAIMATHI

                                                  S.A.No.139 of 2000

                     Kalyani Pulavar                                   ...Appellant
                                                          vs.

                     1.Maria Michael Filix (died)
                     2.Subramania Padayachi
                     3.Karuppasami Thevar (died)
                     4.Pallikonda Perumal (died)
                     5.Packiam
                     6.Shacklin
                     7.Suganthi
                     8.Shanthi
                     9.Rathi
                     10.Raj                                         ... Respondents

                     (Memo dated 08.09.2015 (filed on 09.09.2015) is
                     recorded as respondents 3 and 4 are given up,
                     vide Court order dated 28.03.2022 in S.A.No.139
                     of 2000)


                     (R5 to R10 are brought on record as LRs of the
                     deceased           R1   as    per   order   dated   07.09.2018        in
                     C.M.P.(MD)Nos.2924 to 2926 of 2017)




                     Page 1 of 20
https://www.mhc.tn.gov.in/judis
                                                                             S.A.No.139 of 2000



                     Prayer: Second Appeal filed under Section 100 of
                     the Code of Civil Procedure against the Judgment
                     and Decree dated 06.07.1999 in A.S.No.115 of 1996
                     on the file of the Principal Subordinate Judge,
                     Tenkasi reversing the Judgment and Decree dated
                     03.09.1996 in O.S.No.34 of 1992 on the file of
                     the District Munsif, Tenkasi.


                     For Appellant                  :   Mr.G.Sridharan

                     For Respondents                :   No appearance


                                                    JUDGMENT

Being aggrieved by the Judgment and Decree of

the First Appellate Court namely Principal Sub

Court, Tenkasi in A.S.No.115 of 1996, the first

defendant namely Kalyani Pulavar has preferred

this Second Appeal.

2. The suit in O.S.No.34 of 1992 was filed by

sole plaintiff Maria Michael Filix on the file of

the District Munsif Court, Tenkasi against (i)

Kalyani Pulavar (ii) Subramanian (iii)

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

Karuppasami Thevar and (iv) Pallikonda Perumal

for the reliefs mentioned hereunder.

(a) To declare that the suit second schedule

pathway belongs only to the plaintiff and the

defendants 2 to 4 and consequential prohibitory

injunction against the first defendant.

(b) To grant an order of mandatory injunction

against the first defendant to the effect that he

has to close the opening made on the western side

wall which belongs to the first defendant,

failing which it has to be done through the

process of Court.

3. The learned Trial Court after hearing both

sides and upon considering the oral and

documentary evidence has concluded that as the

first defendant has got the pathway right and has

made a 'thondu' on his own wall, the plaintiff is

not entitled to any of the prayer sought for and

dismissed the suit in full.

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

4. Aggrieved by the same, the plaintiff

preferred an appeal before the Principal Sub

Court, Tenkasi and the appeal was allowed by

setting aside the Judgment and Decree of the

Trial Court. The suit was ordered to be decreed

by granting one month time to close the opening

made by the first defendant.

5. Against the said Judgment, the first

defendant has preferred this appeal.

6. Parties are referred to, as per their

litigative status before Trial Court.

7. The first item of the suit is a Plot with

5 5/8 feet in east-west and 15 1/8 feet in north-

south with a hut facing southern side bearing

Door No.16. The second item of the suit is a

public pathway which runs north-south measuring 1

feet in east-west and 35 feet in north-south.

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

8. According to the plaintiff, the first item

of the suit property, namely, Plot was purchased

by his junior maternal aunt Siriya Pushpam Ammal

from the fourth defendant Pallikonda Perumal

through registered sale deed dated 30.08.1973 and

she was in possession and enjoyment of the Plot

as well as the adjoining pathway, namely, suit

second schedule pathway. The plaintiff claims

title by way of Ex.A5 Will dated 20.12.1986

executed in his favour by Siriya Pushpam Ammal.

Ex.A1 sale deed dated 30.08.1973 stands in the

name of Siriya Pushpam Ammal. He would further

claim that he along with the defendants 2 to 4

who are residing to the western side of the

pathway have been all along using the pathway.

It is further claimed that subsequent to the

death of Siriya Pushpam Ammal in the year 1981,

the Will executed by her came into effect and he

has been in possession and enjoyment of the first

item of the suit property and also has been using

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

the suit pathway. The plaintiff would further

claim that the first defendant has purchased the

vacant plot towards east of suit pathway and by

constructing a building thereon, the first

defendant is claiming that he has got a right in

the suit pathway. In the month of December 1991,

the first defendant has created an opening upon

the western side wall.

9. It is relevant to note that though the

defendants 2 to 4 have been using the suit

pathway, the plaintiff has no grievance against

them. Therefore, there is no issue as regards

the defendants 2 to 4.

10. The plaintiff's serious contention is

that there is no pathway right given either to

the predecessor in title to the first defendant

or to the first defendant and they never used the

suit pathway. Hence the suit to declare that the

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

pathway is meant exclusively for the enjoyment of

the plaintiff as well as the defendants 2 to 4;

for subsequent injunction preventing the first

defendant from using the pathway; and mandatory

injunction to close the opening made in the

western side of the defendant's property.

11. Despite the service of summons,

defendants 2 to 4 remained absent before the

Trial Court.

12. Counteracting to the details of the

plaint, the first defendant has claimed that the

pathway is a common pathway. No exclusive right

was granted to the plaintiff in the Will.

Therefore, the plaintiff can never claim any

exclusive right of pathway. In fact, the

predecessor in title to the pathway, namely,

Pallikonda Perumal had pathway right. The said

right was conveyed to his predecessor in title

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

and in turn the first defendant has got right of

pathway. He further claims that based on the

said right only, he has kept opening in the

western side of his property. In order to prove

his pathway right, he has filed a suit before the

Tenkasi Munsif Court in O.S.No.634 of 1991 and it

is kept pending. As the plaintiff's right to

enjoy the pathway is never interrupted, he cannot

seek for injunction, much less, mandatory

injunction against him.

13. Based on the above said pleadings, the

following issues have been framed by the Trial

Court.

(i) What are the relief the plaintiff is

entitled to?

(ii) Whether the contention of the first

defendant that the pathway is a common pathway is

correct or not?

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

14. The Additional issues framed by the Trial

Court are as follows.

(i) Whether the contention of the plaintiff

that the suit pathway is meant only for the

plaintiff and the defendants 2 to 4 is correct or

not?

(ii) Whether the plaintiff is entitled for

the relief of mandatory injunction?

15. At trial, the plaintiff has examined

himself as PW1. Exs.A1 to A6 were marked. Sale

deed executed by Pallikonda Perumal in favour of

Siriya Pushpam Ammal (certified copy) is Ex.A1.

Will executed by Siriya Pushpam Ammal in favour

of the plaintiff is Ex.A5. Rough Plan is Ex.A3.

On the first defendant's side, the first

defendant has examined himself as DW1. Exs.B1 to

B5 were marked. Sale deed executed by

Arupudhamani Nadar in favour of the first

defendant is Ex.B4. Pending suit, a sale deed

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was executed by Karuppasami Thevar in favour of

the first defendant and the same is marked as

Ex.B5. Report and Sketch of the Advocate

Commissioner are Exs.C1 and C2.

16. After hearing both sides and upon

considering the oral and documentary evidence,

the Trial Court has held that the pathway was

laid by Karuppasami Thevar and plots situated to

the east and west of the pathway belong to

Karuppasami Thevar and came to a conclusion that

it was proved by the first defendant that he has

got a right to use the common pathway and hence,

dismissed the suit in toto.

17. Aggrieved, the plaintiff preferred an

appeal before the Principal Sub Court, Tenkasi in

A.S.No.115 of 1996. After hearing the arguments

of the plaintiff and the first defendant, it was

concluded by the first Appellate Court that as

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

the predecessor in title of the first defendant

did not have any pathway right, so also, the

first defendant does not get the same and the

appeal was allowed by decreeing the suit.

18. This Court admitted the Second Appeal on

05.01.2001 by framing the following substantial

question of law.

                                        "Whether      the     lower     Appellate
                                        Court   erred       in    law   and    mis-

directed itself in appreciating the evidence namely Exs.B1 to B4 and whether the findings recorded are vitiated by perversity?"

19. The learned counsel for the appellant /

first defendant would strenuously argue that

Siriya Pushpam Ammal purchased the plot with the

pathway right through Ex.A1. It is his argument

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that by way of marking all the available sale

deeds namely Exs.B1 to B4, pathway right of the

first defendant was clearly established during

the trial and the Trial Court in a proper

perspective appreciated the same and dismissed

the suit. Whereas the title deeds of the first

defendant namely Exs.B1 to B4 and the pathway

right details were mis-conceived by the first

Appellate Court and the appeal was allowed. He

would stress upon the fact that through Ex.B1

sale deed, limited pathway right was conveyed to

Muthaiya. It is his further argument that the

said Muthaiya purchased the pathway right from

the appropriate persons namely Karuppasami Thevar

and his son Pandarachamy Thevar through Ex.B2

sale deed dated 08.04.1988. It was further

argued that the said pathway right was conveyed

to the first defendant herein through Ex.B4 dated

20.09.1991. He forcefully argued that it should

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

not lie in the mouth of the plaintiff that the

first defendant does not have pathway right as

the first defendant has marked all the title

deeds with regard to the fact that he has got

pathway right.

20. Though names of the respondents 2, 5 to

10 are printed in the cause list, there is no

representation on their behalf.

21. On the other hand, the appellant / first

defendant claims that based on Exs.B1 to B4, he

has got right to use the pathway. Exs.B1 to B4

are the sale deeds connected to the first

defendant's plot which is situate to the east of

the common pathway. Ex.B1 is the certified copy

of sale deed dated 16.02.1988 executed by

Arumugachamy Thevar and his vagayara in favour of

Muthaiya Mudhaliyar, s/o. Vallinayaga Muthaliyar

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in respect of vacant Plot 10 x 32 feet in S.No.

219/6 along with the incidental rights to keep

the window over the western side and right to use

the pathway of Pandarachamy Thevar and Arumuga

Thevar to whitewash the wall. Ex.B2 is the

certified copy of the sale deed dated 08.04.1988

executed by Karuppusami Thevar and his son

Pandarachamy Thevar in favour of said Muthaiya in

respect of pathway right. The Said Muthaiya sold

the Plot which is situate to the east of the

pathway on 02.06.1989 through Ex.B3 sale deed to

one Arpudhamani Nadar along with the pathway

right. The above property along with the pathway

right was purchased by the first defendant on

20.09.1991 through Ex.B4 sale deed. Ex.B5 sale

deed came into being during the pendency of the

suit. Hence, it needs no consideration.

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

22. According to the first respondent /

plaintiff, his junior maternal aunt purchased the

plot to the west of the suit property from the

fourth defendant Pallikonda Perumal through a

registered sale deed dated 30.08.1973 along with

the pathway right. He claims pathway right in

respect of suit second schedule pathway based on

Ex.A5 Will executed by his junior maternal aunt

Siriya Pushpam Ammal. As rightly pointed out by

the learned counsel for the appellant / first

defendant, in the suit second schedule pathway,

it is mentioned as common pathway (bghJ eilghij).

23. The suit mainly revolves upon the pathway

issue. The first respondent / plaintiff claims

pathway right through Ex.A5 Will. The pivot

point is whether the defendant has got right to

use the pathway - namely second schedule

property. However, the appellant / first

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

defendant has filed all the title deeds in

respect of the pathway right. A deep analysis of

Exs.B1 to B4 as mentioned supra, depict the fact

that the vendor in Ex.B1 gets a limited right in

the pathway at the first instance. Thereafter,

through Ex.B2, the said Muthaiya purchased the

common pathway right from the respective persons

namely Karuppusami Thevar and his son

Pandarachamy Thevar. Therefore, the predecessor

in title, namely, Muthaiya had got pathway right

which was later conveyed to one Arpudhamani Nadar

through Ex.B3. The appellant / first defendant

purchased the Plot as mentioned supra through

Ex.B4 from the said Arpudhamani Nadar along with

the pathway right.

24. Rough Sketch filed by the first

respondent / plaintiff was marked as Ex.A3. This

was not disputed by the appellant / first

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defendant. An Advocate Commissioner was appointed

to inspect the suit property and he has also

filed his report along with rough sketch which

are Exs.C1 and C2. There is no serious objection

for the Commissioner Report and Plan.

25. It was made vividly clear by the

appellant / first defendant that he purchased a

Plot to the east of the suit pathway along with

the pathway right as discussed supra. Even in

the plaint, the suit second schedule pathway, was

mentioned as common pathway. It is not the case

of the first respondent / plaintiff that the

pathway is exclusively meant for the usage of

particular persons. When the first respondent /

plaintiff used the word in the plaint that the

pathway is a common pathway, he is estopped from

contending that it is a pathway meant for

specific persons. More so, the appellant / first

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

defendant has given the details of all the sale

deeds pertaining to the issue in the suit. The

pathway right was conveyed by the predecessors in

title of the appellant / first defendant through

Exs.B1 to B3 and the appellant / defendant has

purchased a Plot situated to the east of the

pathway along with the pathway right by way of

Ex.B4. As the first respondent / plaintiff has

utterly failed to prove his case and on the other

hand, the appellant / first defendant has proved

his case through Exs.B1 to B4, this Court is left

with no option, but to non-suit the plaintiff.

26. In the result, the substantial question

of law framed by this Court is answered in favour

of the appellant / first defendant.

27. For the reasons stated supra, the suit

stands dismissed and the Judgement and Decree of

the first Appellate Court in A.S.No.115 of 1996

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

on the file of the Principal Subordinate Judge,

Tenkasi is set aside. The Second Appeal stands

allowed. There is no order as to costs.

18.10.2023

NCC:Yes/No Index:Yes/No Speaking/Non-speaking order

mbi

To

1.The Principal Subordinate Judge, Tenkasi

2.The District Munsif, Tenkasi.

3.The Section Officer, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis S.A.No.139 of 2000

R.KALAIMATHI, J.

mbi

S.A.No.139 of 2000

18.10.2023

https://www.mhc.tn.gov.in/judis