Madras High Court
Kasi vs T.A.Ramasamy on 4 November, 2024
S.A. No. 1370 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2024
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
S.A. No. 1370 of 2013
Kasi ... Plaintiff/ Appellant
Vs.
T.A.Ramasamy ... Defendant /Respondent
PRAYER: Second Appeal is filed under section 100 of the Code of Civil
Procedure, 1908, to set aside the judgment and decree dated 29.04.2011 made
in A.S. No. 148 of 2010 on the file of the I Additional Sub Judge, Salem,
confirming the judgment and decree dated 18.06.2010 made in O.S. No. 676
2001 of 2010 on the file of the II Additional District Munsif, Salem.
For Appellant : Mr.R.Jayaprakash
For Respondent : Mr.B.Vasudevan
JUDGMENT
The Appellant is the Plaintiff, who has filed the suit for
declaration in respect of the alleged pathway and consequent permanent
injunction, and the lost it before the Trial Court as well as the first Appellate
https://www.mhc.tn.gov.in/judis
Court.
2. The Appellant/Plaintiff has raised the following questions alleging that
they are the substantial questions of law that would arise in this appeal:-
“(a) Whether the Lower Appellate Court was right in
dismissing the suit in its entirety more so when the
existence of a way has been admitted to the defendant?
(b) Whether the Lower Appellate Court was right in brushing
aside the findings relating to existence of a cart track in
the earlier proceedings i.e., in O.S. No. 301 /1992 and
A.S. No. 46/2005?
(c) Whether the Lower Appellate Court was right in holding
that the other owners of land in S.No. 33 are necessary
parties to the suit?”
He further submitted that the Court below has erred and not considered the
facts, materials on record in proper perspective by applying the position of
law and in a proper manner and dismissed the suit.
3. The first substantial question of law is about the admission of the
https://www.mhc.tn.gov.in/judis
Defendant as to the existence of a way, but the Plaintiff specifically claims
that there is a cart-track. The Defendant had filed a written statement and
pleaded all along in an unequivocal term that there is no cart-track, but there
is only a pathway. Even the Defendant in his cross-examination is seen to
have admitted that the suit pathway is a bund. Further, the Plaintiff has not
chosen to seek the assistance by appointment of a Commission in order to
observe the physical features of the suit property and file a report. Hence, the
first question does not made out any substantial question of law.
4. The next substantial question is that the Lower Court is not right in
appreciating the findings rendered in O.S. No. 501 of 1992 about the
existence of a cart-track. The Trial Court has appreciated the judgment passed
in O.S. No. 501 of 1992 which was available as Ex.A10 and the
Commissioner has filed a report in the very same suit which was available as
Ex.A.8. The above suit has been field by the Defendant as being the Plaintiff
against one Kathirvelu. Even in that suit and the Commissioner's report, the
reference about the pathway has been made, but it has not stated as a 10 feet
cart-track. Hence, the Trial Court and the Lower Appellate Court are right in
not accepting the contention of the Appellant/Plaintiff that in the earlier
https://www.mhc.tn.gov.in/judis
proceedings there is an observation about the existence of the cart-track.
5. The third question raised by the Appellant is that the Court below is
right in holding that the other owners of the land in Survey No. 33 are
necessary parties to the suit. As the Plaintiff claims that the alleged cart-track
originates from Survey No. 33/9 and runs across the said Survey Number, it is
appropriate on the part of the appellant /plaintiff to implead all the other
owners of the said Survey No.33/9. Both the Court belows have rightly
observed that the other owners are also necessary parties to the suit, and the
suit is hit due to non-joinder of necessary parties. As the Lower Courts had
rightly approached and rendered a finding on the issue concerning necessary
parties, the question no.3 also does not make out any substantial question of
law.
6. As the appeal does not raise any substantial question of law to be dealt
as submitted by the appellant, this appeal is dismissed. No costs.
04.11.2024
Index : Yes/No
Speaking order : Yes/No
https://www.mhc.tn.gov.in/judis
NCC : Yes/No
Maya
https://www.mhc.tn.gov.in/judis
To
1. The I Additional Sub Judge
Salem.
2. The II Additional District Munsif
Salem.
3. The Section Officer,
V.R. Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
R.N.MANJULA, J.
Maya
04.11.2024
https://www.mhc.tn.gov.in/judis
