Madras High Court
S.Nesaiyappan vs S.Serumani on 30 October, 2023
S.A(MD)No.526 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :30.10.2023
CORAM
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)No.526 of 2023
and
C.M.P(MD)No.12382 of 2023
1.S.Nesaiyappan
2.N.Mohankumar
3.N.Vijayakumar ... Appellants/Appellants/Defendants
Vs.
S.Serumani ... Respondent/Respondent/Plaintiff
PRAYER:- Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree, dated 13.11.2021 made in
A.S.No.60 of 2015 on the file of the learned Subordinate Judge,
Padmanabapuram confirming the judgment and decree dated
03.08.2015 made in O.S.No.190 of 2020 on the filed of the learned
Additional District Munsif Court, Padmanapapuram.
For Appellants :Ms.M.Athilakshmi
For Respondent :Mr.G.Aravinthan
1/10
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S.A(MD)No.526 of 2023
JUDGMENT
This second appeal is filed challenging the judgment and
judgment and decree, dated 13.11.2021 made in A.S.No.60 of 2015 on
the file of the learned Subordinate Judge, Padmanabapuram confirming
the judgment and decree, dated 03.08.2015 made in
O.S.No.190 of 2020 on the filed of the learned Additional District Munsif
Court, Padmanapapuram.
2. The respondent as a plaintiff filed a suit in
O.S.No.190 of 2020 seeking the following reliefs:
(a) Declaration of easementary right of
pathway over the northern ½ cents six links width of
path way on the B-Schedule Property.
(b) Mandatory injunction directing the
defendants to remove the construction made in
B-Schedule Property obstructing the passage to
A-Schedule Property which is a compound wall and
latrine in B-Schedule property.
(c) Permanent injunction restraining the
defendants from obstructing the passage of the plaintiff
through northern side of the B-Schedule Property to reach
the A-Schedule Property; and for cost and other reliefs.
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S.A(MD)No.526 of 2023
3. The case of the plaintiff in brief is that the plaint schedule
properties and other properties originally belonged to Subramanian
Nadar, who is the father of plaintiff and first defendant. He executed
the settlement deed on 19.03.1982. As per this deed, he divided the
properties into three schedules. B-Schedule property was allotted to
first defendant and it is shown as B-Schedule property in the plaint. In
the north-western portion of B-schedule property, the land measuring
an extent of ½ cent was reserved and allotted for graveyard for
Subramanian Nadar and his wife Ponnu Nadachi, which is shown as A-
schedule property in the plaint. B-Schedule Property is the only access
to A-Schedule property. Plaintiff is entrusted to look after and maintain
the A-Schedule property. After the death of Subramanian Nadar in
1999, his body was buried in plaint A-Schedule Property and a coconut
tree was planted for his remembrance. The mother of the plaintiff and
first defendant namely Ponnu Nadachi was aged 90 years and after her
death, her body was also buried in A-schedule property. In 2008, 1st
defendant constructed a compound wall and latrine in B-schedule
property by obstructing the access to A-schedule property. In such
circumstances, the suit was filed for the aforesaid reliefs.
4. In the written statement filed by the defendants, it is
submitted that the 1st defendant constructed a compound wall in
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S.A(MD)No.526 of 2023
B-schedule property, which was allotted to him in 1982 document. He
has also constructed a new house for residential purpose. 1st defendant
never obstructed the passage to reach the graveyard at any time. First
defendant never constructed a compound wall beyond the limit of
B-Schedule Property. The graveyard portion is lying within the
1st defendant's property and it is used in common. There is a gate in
B-schedule property to reach A-Schedule property through B-schedule
property.
5. On the basis of the above said pleadings, the trial Court
framed the following issues:
“(i) Whether the plaintiff is entitled for the
relief of mandatory injunction?
(ii) Whether the plaintiff is entitled for the
relief of permanent injunction?
(iii) Whether the plaintiff is entitled for the
relief of declaration? ; and
(iv) For what other relief and cost, the parties
are entitled to?”
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S.A(MD)No.526 of 2023
6. During the course of trial, P.W.1, D.W.1 and C.W.1 were
examined. Exs.A1 to A5 and Exs.C1 & 2 were marked.
7. On the basis of oral and documentary evidence, the trial
Court found that there is a small gate on the eastern side of B-Schedule
property and this gate prevents the plaintiff and his other brother to
reach A-Schedule property. Thus, granted the relief of mandatory
injunction for removal of the gate. Similarly, in view of the clear-cut
recital in Ex.A1 and in the evidence of the parties, it was found that
A-Schedule Property is the graveyard of plaintiff and first defendant's
parents; plaintiff cannot be prevented from reaching A-schedule
property and decreed the suit as prayed for. Challenging the said
judgment and decree, the defendants preferred an appeal.
8. The first appellate Court confirmed the findings of the trial
Court. Against which, this second appeal is filed.
9. The points arise for consideration in this second appeal are,
“ (i) Whether any substantial question of law
is involved for entertaining this appeal? ; and
(ii) Whether the judgments of the Courts
below can be sustained?”
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S.A(MD)No.526 of 2023
10. Heard the learned counsel appearing for the parties and
perused the materials available on record.
11. This second appeal is filed by the defendants. It is the
submission of the learned counsel for the appellants that the appellants
had never obstructed the respondent/plaintiff from reaching
A-Schedule Property through B-Schedule Property. There are two gates
on the eastern side of B-Schedule property. One big and one small on
the eastern compound wall. Small gate was not originally installed.
Only to facilitate the respondent and his family members to reach
A-Schedule Property, this gate was installed during the pendency of the
suit. The appellants/defendants have no objection for the plaintiff and
his family members to use this small gate to reach A-Schedule Property.
Thus, he prays that, the said part of the judgment which granted the
relief of mandatory injunction for removal of the gate to be set aside and
in all other aspects, the appellants have no grievance over the judgment
of the Courts below.
12. In response, learned counsel for the respondent/plaintiff
submitted that a small gate is not in line with the pathway, which leads
to A-Schedule Property. It is better that it can be fixed at the extreme
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S.A(MD)No.526 of 2023
north eastern part of the compound wall.
13. In the light of the position taken by the
appellants/defendants in the written statement that they have no
objection for the respondent/plaintiff to use B-Schedule Property to
reach A-Schedule Property and now, the following substantial question
of law arises for the consideration of this Court.
“Whether the judgment of the Courts below can be
sustained in the light of admission made by the appellants
aforesaid?”
14. This Court considered the rival submissions, the
Commissioner's Report and Ex.A3-photo produced.
15. It is seen from Ex.A3-Photograph that just abutting the
northern property and close to north eastern corner of first defendant's
property, there is a big tree. Therefore, this Court is of the view that
without removing the tree it is not possible to use the north eastern
corner of B-Schedule Property to reach the A-schedule property.
Admittedly, the suit was not filed for removal of the tree, which is in
existence for several years. This Court finds from Ex.A3-Photograph
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S.A(MD)No.526 of 2023
that within four feet from southern wall of third party owner, the small
gate is in the eastern compound wall of B-Schedule property available.
Instead of removing the small gate and shifting, the plaintiff and his
family members can use this small gate to reach the A-Schedule
property. It is unnecessary to shift the gate to the extreme north-
eastern corner of the compound wall.
16. In this view of the matter, the judgment of the Courts
below are confirmed in all aspects except with regard to the grant of
mandatory injunction for removal of small gate in B-Schedule Property.
Rather the said gate can be used for ingress and egress by the plaintiff
and his family members to reach A-Schedule Property. This Court
suggests that the parties can buy a lock with two keys. Each party can
retain one key for the use of the gate. Thus the substantial question of
law is answered.
17. Accordingly, this Second Appeal is allowed in part.
No Costs. Consequently, connected miscellaneous petition is closed.
30.10.2023
pm
Index:Yes/No
NCC:Yes/No
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S.A(MD)No.526 of 2023
To,
1.The Subordinate Judge,
Padmanabapuram.
2.The Additional District Munsif Court,
Padmanapapuram.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.526 of 2023
G.CHANDRASEKHARAN, J.
pm
S.A(MD)No.526 of 2023
30.10.2023
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