Madras High Court
Jeevajothi vs Subbulashmi @ Ammasaiammal(Died) on 19 November, 2025
SA No. 156 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19-11-2025
CORAM
THE HON'BLE DR.JUSTICE R.N.MANJULA
SA No. 156 of 2011
and M.P.No.1 & 2 of 2011
JEEVAJOTHI
S/o Thiruvenkatachalam Keezhvani Keezhvani
Village Bhavani Tk
Erode Dist
..Appellant(s)
Vs.
1.Subbulashmi @ Ammasaiammal(died)
W/o Gurusamy
Keezhvani Keezhvani Village Bhavani Tk Erode
Dist
2.SHANTHI
W/o Ravi
Keezhvani Keezhvani Village Bhavani Tk Erode
Dist
3.Govindarajan(died)
S/o Gurusamy Mudaliar
Keezhvani Keezhvani Village Bhavani Tk Erode
Dist.
R3 Died, R1 Died. R2 Already On Record Is
Recorded As Legal Heir Of The Deceased
R1.Memo Recorded(usr.No.3608, Dated
__________Page 1 of 16
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SA No. 156 of 2011
30/01/2025) Vide Court Order Dated 30/10/2025
Made In Sa.No.156 Of 2011(rnmj)
4.PRAKASAM
S/o Vadiveu Mudaliar
At Moongilpaty Keezhvani Village Bhavani Tk
Erode Dist
..Respondent(s)
Prayer: Second Appeal is filed under Section 100 of CPC as against the
judgment and decree dated 29.07.2010 made in A.S.No.30/2008 on the file of
the Sub Court, Bhavani – confirming the judgment and decree dated 28.10.2005
made in O.S.No.253/2005- on the file of the II Additional District Munsif
Court, Bhavani – in so far as it is against the appellant.
For Appellant(s): Ms.D.Sathya
for Ms.ZEENATH BEGUM
For Respondent(s): M/S.M.NARAYANASWAMY FOR R2
JUDGMENT
The appellant is the plaintiff who filed a suit in O.S.No.253/2005 seeking
the relief of permanent injunction. The trial Court partly decreed the suit in
respect of ‘A’ schedule property and dismissed the suit in respect of ‘B’ and ‘C’
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schedule properties. Hence both the plaintiff and the defendants have preferred
the first appeal in A.S.Nos.30/2008 & 06/2009. The lower Appellate Court
dismissed both the appeals by confirming the judgment of the trial Court. The
plaintiff has filed the Second Appeal challenging only the operation of the
judgment in respect of ‘B’ and ‘C’ Schedule property (A.S.No.30/2008).
However, the defendants did not prefer any appeal as against A.S.No.06/2009.
So the relief granted in respect of the ‘A’ Schedule has become absolute. Now
the Second Appeal is only in respect of ‘B’ and ‘C’ Schedule properties.
2. The facts pleaded by the plaintiff in the plaint in brief:
The plaintiff's paternal uncle is Gurusamy Mudaliar. The first defendant
is the wife of Gurusamy Mudaliar. The second and third defendants are the
children of the first defendant. The plaintiff's father died when he was a minor.
The plaintiff's father is the paternal grandfather of Gurusamy Mudaliar who had
the ancestral properties in S.No.4/1, S.No.3 / Kilavani Vilalge, Bhavani Taluk.
After the demise of plaintiff's father, the plaintiff, his mother and his brothers
along with Gurusamy Mudaliar has entered into partition. In the said partition
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S.No.4/1,3/4, 7, 10, 12 were allotted to Gurusamy Mudaliar. The lands in
S.No.3/2, 5, 8, 11 and 13 at Keezhvani Village belong to plaintiff’s family.
While partitioning the property in the above said manner, the pathway has been
allotted in Resurvey No.4/13. In order to reach the lands in S.No.3, a pathway
runs from the western side of Bhavani Athani road and it has been shown as ‘A’
schedule property. S.No.4/1 has been sub-divided into S.No.4/1A to 13
subsequent to the partition. The suit pathway has been given as an easement of
necessity. A family partition had been occurred in the plaintiff’s family on
05.07.1989 and in which properties have been allotted to the plaintiff and he
continue to use ‘A’ schedule property.
2.1 On 10.03.1994, Gurusamy Mudaliar, his another son Murugesan and
his children sold the lands in S.No.2/4, 2/8, 3/1 to the plaintiff and his wife
Kuppaiyammal. The above sale is inclusive of 1/4 share of the Well situated in
S.No.4/1A. Just in order to reach those lands, the plaintiff has purchased the
right in pathway. As the defendants have created troubles even after the
purchase of the pathway, the plaintiff has filed a suit in O.S.No.528/1985 on the
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file of the District Munsif Court, Bhavani, against the defendants 1 to 3, seeking
the relief of permanent injunction. The above suit has been dismissed on
18.02.1999. A first appeal in A.S.No.70/1999 was preferred challenging the
above judgment of dismissal and in which a settlement has been arrived
between both the parties and in which ‘B’ schedule pathway was formed. A
compromise decree has also been passed in A.S.No.70/1999. From the date of
compromise decree the plaintiff and the defendants 1 to 3 are using the suit ‘B’
schedule property for transportation purposes.
2.2 The right in the Well purchased by the plaintiff and his wife’s on their
¼ share in the Well in S.No.4/1A has been shown in ‘C’ schedule. In view of
the said purchase the plaintiff’s wife and the plaintiff are entitled to 1/8 share
each in the Well and the first and second defendants are entitled to ¼ share and
the third defendant is entitled to ¼ share and another son of Gurusamy Mudaliar
is entitled to ¼ share. The fourth defendant has purchased the share of
Ramachandran’s ¼ share recently. The defendants tried to destroy the Well and
converted it as a land by closing the same. The defendant’s have attempted to
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prevent the plaintiff from using ‘A’ and ‘B’ schedule pathway by causing
obstruction and that was prevented. Subsequently, the plaintiff has filed the suit
for permanent injunction.
3. The written statement filed by the first defendant and adopted by the
defendants 2, 3 and 4 in brief:
The defendants deny that the plaintiff’s family has been allotted with the
lands in S.No.3/2, 5, 8, 11 and 13. It is false to state that there was a pathway to
S.No.3 through S.No.4/13 and it has not been stated so in the partition deed of
the year 1975. If the same is found place in the subsequent partition deed dated
05.07.1989, it is not true. The plaintiff is entitled only to ‘A’ schedule property
and he did not use any pathway. The pathway alleged by the plaintiff is situated
in defendant’s patta lands. During resurvey, a small portion of land in resurvey
No.4/1A has been attached to the land in resurvey No.4/13. However, it ought
to have been connected to resurvey No.4/1A. The defendants did not claim any
right in the suit ‘B’ schedule property.
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3.1 It is false to state that the defendants have attempted to close the Well
in ‘C’ schedule property. The well was closed with stones and wood and that
has to be properly maintained. The defendants have obtained service connection
to the Well in the year 1987 and have a 5 H.P. Motor pump sets. As there was
no water in the Well, it was in disuse for nearly 7 years. When the defendants
attempted to clean the Well, it was prevented by the plaintiff. The plaintiff is
irrigating his lands by taking water from some other Well. The defendants did
not obstruct the plaintiff from using ‘B’ schedule pathway.
4. On the basis of the above pleadings, the trial Court has framed the
following issues:
1/ ‘V’ ml;ltiz brhj;jhd tz;oj;jlkhdJ thjpapd; g{kpf;F bry;y
trjpa[hpikapd; mog;gilapy; gad;gLj;jg;gLfpwjh?
2/ gpujpthjpfs; jhth rp bc&l;a{y; brhj;jpy; cs;s ku';fis mfw;w
chpika[s;stuh ?
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3/ thjp nfhhpa ghpfhuk; fpilf;fj;jf;fjh ?
4/ ntW vd;d ghpfhuk; thjpf;F fpilf;fj;jf;fjh ?
5. During the course of the pleadings, on the side of the plaintiff two
witnesses have been examined as P.W.1 and P.W.2 and documents Exs.P1 to P9
were marked. On the side of the defendants two witnesses have been examined
as D.W.1 and D.W.2 and no documents were marked. Two Court documents
were marked as Exs.C1 and C2.
6. At the conclusion of the trial the trial Court decreed the suit in respect
of suit ‘A’ schedule property and dismissed the suit in respect of ‘B’ and ‘C’
schedule property and the first appeal preferred by both parties got dismissed
and now the plaintiff has filed this Second Appeal pressing his relief in respect
of ‘B’ and ‘C’ schedule properties.
7. The Second Appeal is admitted with the following Substantial
Questions of Law:
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“1) Whether the judgment of the Court below are vitiated in that they
have refused to grant a relief in respect of the suit B schedule property on
the ground that there is already a decree in respect of this property under
Exhibit A4, whereas the parties to the said decree and the present suit are
different ?
2. Whether the judgment of the Courts below are vitiated in that they
have refused to grant relief in respect of the C schedule property only on the
presumption that no agriculturist would attempt to close the agricultural
well ?”
8. The learned counsel for the appellant / plaintiff submitted that both the
Courts below has not granted the relief in respect of ‘B’ schedule property only
on the presumption that the very same relief has been granted to the appellant /
plaintiff in the earlier suit in O.S.No.528/1985 and A.S.No.70/1999; though
there was a compromise decree entered between the plaintiff and the defendants
in A.S.No.70/1999 in respect of the pathway right of the plaintiff, a new cause
of action has arisen subsequently and hence the appellant / plaintiff was
compelled to file the suit; hence, the Courts ought to have granted the relief by
taking into consideration of the subsequent cause of action and the relief in
respect of ‘C’ schedule has been denied only on surmises and premises by
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ignoring the actual violation caused by the defendants to the plaintiff to enjoy
the rights over the Well; even in the Written statement of the respondent /
defendants they admit the plaintiff’s right in ‘B’ schedule cart track and also the
plaintiff’s right in the ‘C’ schedule Well; in such case the Courts below ought to
have decreed the suit in entirety instead of dismissing it in respect of suit ‘B’
and ‘C’ schedule property.
9. The learned counsel for the respondents / defendants submitted that
when there is already a decree granted in respect of ‘B’ schedule property, the
plaintiff ought not to have filed a suit once again against the same property
which is hit by the principles of res judicata; so far as the ‘C’ schedule Well is
concerned, there is no necessity to close the Well and hence it is right for the
trial Court and first appellate Court to deny the relief sought by the plaintiff in
respect of ‘C’ schedule Well.
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10. The matter lies in a very narrow campus. Even in the written
statement, the defendants did not deny the plaintiff’s right to use ‘B’ schedule
pathway and also their 1/4th share in the ‘C’ schedule Well. Even the
respondents / defendants did not deny the fact that there was a compromise
decree passed in A.S.No.70/1999 between the same parties and the parties have
agreed that ‘B’ schedule cart track will be formed and both the parties have the
right to use the ‘B’ schedule pathway. When the right of the appellant / plaintiff
is confirmed and the plaintiff has been given with the right to use ‘B’ schedule
property by virtue of the compromise decree already passed in the earlier
proceedings, in case of any violation of the said decree by way of causing
obstruction to the appellant / plaintiff to enjoy the above right, would give her
the cause of action to initiate the contempt proceedings and not a fresh suit.
Even now the respondents / defendants did not deny the plaintiff’s pathway
right over the ‘B’ schedule cart track. In case the respondents / defendants
continue to cause obstruction to the plaintiffs from using the cart track, it is
always open to the plaintiff to initiate contempt action.
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11. The only argument of the learned counsel for the appellant / plaintiff
is that whenever a violation is caused, that would give rise to new cause of
action and hence the plaintiff is entitled to maintain a suit for permanent
injunction. Only by saying that the defendants have prevented the plaintiff from
enjoying the pathway right, the earlier suit has been initiated and in which the
right of the parties were confirmed and one of the terms of the compromise is
that one party should not obstruct the other party from using ‘B’ schedule cart
track. In such case, the decree itself would take care of any violation committed
by either of the parties and the party affected has got the right to initiate
contempt actions against the one who has violated the terms of compromise
which form part of the compromise decree passed in A.S.No.70/1999. Thus the
Substantial Question of Law No. 1 is answered.
12. With respect to ‘C’ schedule property which pertains to ¼ joint right
for the plaintiff in the suit Well also the respondents / defendants do not have
any quarrel. In the written statement itself the defendants have admitted the
plaintiff’s right over the same. In such case, the trial Court could have granted
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the decree in respect of ‘C’ schedule property also. But the Courts have thought
that no agriculturist would close the Well.
13. From the observation of the trial Court’s judgment it is clear that the
plaintiff was using the water from some other Well and not from the suit Well.
When an agriculturist has got a right in a Well, he would not relinquish such
right except for any valid reasons when he continues to undertake agricultural
activities in his lands. The Courts below ought to have appreciated the above
evidence as a preponderance of probabilities that the defendants would have
obstructed the plaintiff from making using of his right in the suit Well. Had the
plaintiff’s right in the suit ‘C’ schedule Well has not been prevented he would
not have stopped from using the same. Instead of appreciating the cause of
action, basing on the evidence available on record, it appears that the Courts
below have denied the relief in respect of the ‘C’ schedule property on a mere
presumption, which is not correct. Thus the Substantial Question Law No.2 is
answered.
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14. In view of the above, the Second Appeal is allowed. No costs.
Connected miscellaneous petitions are closed.
19-11-2025
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
BKN
To:
1. The Sub Judge, Bhavani .
2. II Additional District Munsif, Bhavani
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DR.R.N.MANJULA, J.
BKN
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19-11-2025
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