Madras High Court
T. Vijayakumar vs Kannammal on 17 October, 2025
S.A.Nos.630 & 631 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 13.08.2025
Pronounced on 17.10.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.Nos.630 & 631 of 2022 and
C.M.P. No.12647 of 2022
T. Vijayakumar ...Appellant in both the appeals
Vs.
Kannammal ... Respondent in both the appeals
Prayer in S.A. No.630 of 2022 : Second Appeal filed under Section 100
CPC, 1908 against the decree and judgment dated 07.12.2021 made in
A.S. No.20 of 2018 on the file of the learned Subordinate Judge,
Pollachi, reversing the judgment and decree dated 07.07.2017 made in
O.S. No.421 of 2010 on the file of the learned District Munsif, Pollachi.
Prayer in S.A. No.631 of 2022 : Second Appeal filed under Section 100
CPC, 1908 against the decree and judgment dated 07.12.2021 made in
A.S. No.38 of 2018 on the file of the learned Subordinate Judge,
Pollachi, confirming the judgment and decree dated 07.07.2017 made in
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O.S. No.421 of 2010 on the file of the learned District Munsif, Pollachi.
For Appellant : Mr.V.Anandhamurthy in both the appeals
For Respondent : Mr.A.V.Arun in both the appeals
COMMON JUDGMENT
The defendant in O.S. No.421 of 2010, who is unsuccessful
before both the courts below, has filed the present second appeals in S.A.
Nos.630 and 631 of 2022.
2. The suit in O.S. No.421 of 2010 has been filed by the
respondent/plaintiff for the following reliefs:
A) Directing the defendant to restore the plaint 'B' schedule
cart track to its original position by granting a decree of
mandatory injunction.
B) Restraining the defendant from, in any way, damaging
the suit cart track.
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C) Restraining the defendants from, in any way, preventing
the plaintiff from using the damaged cart track and for costs.
3. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
4. The case of the plaintiff is that she has purchased the suit 'A' and
B schedule properties under a registered sale deed dated 10.11.1999 and
that 'A' schedule property is an agricultural land measuring 2.03 acres in
S.F. No.107/B3 and 'B' schedule property is a cart track situate in S.F.
No.108/2A. The plaintiff submitted that "B" schedule property is a plan
marked cart track and the same is subdivided and all the revenue records
reflected the said cart track. The plaintiff is using the said cart track to
reach 'A' schedule property and there is no alternative cart track. The
said cart track is also mentioned in the parent document, which is a Will
executed by Kandasamy Kounder. The vendor of the plaintiff was
having properties in S.F.No.108/2B. The defendant has sold an extent of
2 acres to one Mylsamy and another extent of 3.50 acre to the plaintiff.
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Sub divisions have been effected and 'B' schedule property was
subdivided as 108/2A. The plaintiff is using the cart track from the date
of sale in her favour without any objection on the side of the defendant.
Since the defendant tried to obliterate 'B' schedule cart track, the said
Mylsamy, who was using the said cart and neighbouring land owner,
filed a suit for injunction in O.S. No. 459/1996 against the defendant.
The said suit was decreed in his favour. Again on 03.12.2009, the
defendant damaged the cart track and also prevented the plaintiff from
using the same. Hence, the plaintiff preferred a police complaint, where
the defendant gave an undertaking that he would not damage the cart
track. But, again on 04.12.2009, the defendant by using JCB damaged
50% of the suit cart track. According to the plaintiff, the defendant has no
right to obliterate the cart track. Since the defendant attempted to annex
the cart track with his lands, the plaintiff filed a suit in O.S.
No.597/2009 on the file of the District Munsif, Pollachi, for mandatory
and consequential injunction. By oversight, the plaintiff included the
father of the defendant, namely Thirumalaisamy in the above suit. Since
the said Thirumalaisamy died even before the filing of the above suit,
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the plaintiff filed an application to withdraw the said suit and to file a
separate suit. The said application was allowed by the District Munsif,
Pollachi. In the above suit, the court commissioner visited the suit
property and filed a report. In the said report, the existence of the
pathway was clearly mentioned. Taking advantage of the situation, the
defendant further damaged the cart track and therefore, the plaintiff was
constrained to file the present suit for restoration of the cart track to its
original position and to prevent the defendant from further damaging the
cart track and to restrain the defendant from preventing the plaintiff from
using the damaged cart track.
5. The suit was resisted by the defendant by stating that the
plaintiff has no right, title, interest, or possession over the said property.
The defendant asserts that the property exclusively belongs to him as per
the revenue and registered records, and that no portion of the same lies
within the plaintiff’s ownership or enjoyment. It is further stated that no
such cart track ever existed and therefore, there is no question of
damaging any cart track arises. It is further stated that there is no
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connection between the suit filed by one Mylsamy in O.S. No.459/1996
and the present suit. The plaintiff has filed a false case against the father
of the present defendant, which was later withdrawn by her. It is further
stated that that the suit property was purchased by the defendant in the
year 2004 for valid consideration and from then onwards the defendant
is in lawful possession and enjoyment. The plaintiff had earlier filed a
suit in O.S.No.597/2009 against the father of the appellant/defendant
who died 6 years back, even knowing about his death and the same was
withdrawn. The cause of action in the earlier suit and in the present suit
are one and the same. In the said suit, an Advocate Commissioner was
appointed to inspect the suit property and he filed his report and plan
without any notice to the defendant. Hence the plea of the plaintiff to
consider the said report of the Advocate Commissioner in the present suit
is not acceptable. Hence, he prayed for dismissal of the suit.
6.The trial court, after analysing the oral and documentary
evidence, vide its judgment and decree dated 07.07.2017, partly decreed
the suit by granting the relief of permanent injunction restraining the
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defendant from preventing the plaintiff from using the 'B' schedule cart
track. With respect to the other reliefs, the trial court has dismissed the
suit. Aggrieved by this, the plaintiff preferred an appeal in A.S.
No.20/2018 with respect to disallowed portion, whereas the defendant
preferred an appeal in A.S. No.38/2018 with respect to the allowed
portion. The first appellate court, after considering the materials on
record allowed the appeal suit in A.S. No.20/2018 in favour of the
plaintiff and dismissed the appeal suit in A.S. No.38/2018. Aggrieved by
this, the present second appeals have been preferred by the defendant.
7. In the memorandum of grounds of second appeal, the following
substantial questions of law were raised by the appellant.
1) Whether the plaintiff was justified in furnishing the
description of property in the 'B' schedule of the plaint, by
specifying the suit cart track even though such a description
is not found in Ex.A5 sale deed?
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2) Whether in law the courts below were correct in
failing to identify the existence of cart track and the specific
extent of suit cart track which was alleged to be obliterated
by the defendant in suit for mandatory injunction without
having any title to it?
3) Whether the findings of the first appellate court is
perverse to conclude that the suit cart track was mentioned
in the Will dated 28.08.1981 which was neither marked nor
produced by any of the parties to the lis?
4) Whether the courts below has committed an error
for not considering the fact that the plaintiff has no locus
standi to maintain the suit without any iota of evidence to
show that she has any right over the suit cart tract?
5) Whether the plaintiff failed to prove not only the
existence of cart track, but also the user of the alleged cart
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track for over a period as contemplated under Easement
Act?
8. The learned counsel appearing for the appellant/defendant in the
above second appeals would submit that the courts below failed to
consider the fact that the plaintiff had earlier filed a suit in
O.S.No.597/2009 against the father of the appellant/defendant who died
6 years back, even knowing about his death. Thereafter the plaintiff has
withdrawn the same 24.03.2010. Since the cause of action in the earlier
suit and in the present suit are one and the same, the present suit is liable
to be dismissed in limine. His further contention is that the description
of the suit cart track in S.No.108/2B was not mentioned in the sale deed
dated 10.11.1999 marked as Ex.A5 and the first appellate court failed to
examine the oral evidence in a right perspective manner and simply
relied upon the documentary evidence which is not relevant. His further
contention is that the sub division was effected on 25.02.1995 and the
suit cart track was subdivided as S.No.108/2A as per revenue records.
The mutation was done in the name of co owners who are entitled to use
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it. The plaintiff had purchased the 'A' schedule property only in the year
1999. If really there was any access to 'A' schedule property through 'B'
schedule suit cart track is available, the same would have been mentioned
in Ex.A5 sale deed. Hence, the above facts amply proves that the
plaintiff has no right over the suit cart track. The trial court has rightly
held that the cart track in 'B' schedule property in S. No.108/2A is not
established by the plaintiff. While the first appellate court had
erroneously presumed that there is a cart track in S.No.108/2A by relying
on Ex.A5 sale deed, even when there is no specific mention of the
existence of cart track in the said document. He would further contend
that the courts below ought not to have considered the Advocate
Commissioner's report for the reason that he was not examined by the
trial court. Though the appellant/defendant has filed his objections to the
commissioner's report, it was not considered by the trial court.
Moreover, the first appellate court erred in rendering a finding that the
suit cart tract was mentioned in the Will dated 28.08.1981,when the same
was not marked before the trial court. The first appellate court failed to
see that Ex.A5 sale deed has not been proved in a manner known to law
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and completely erred in reversing the findings of the trial court by stating
that Ex.A5 has been proved. The existence of the suit cart track has not
been established by the plaintiff and therefore, her claim for mandatory
injunction fails. While so, the first appellate court erred in holding that
once the trial court allowed the plaintiff to use the suit cart track, she is
also entitled for restoring the cart track to original position. Such a
finding was made only on presumption and not based on the oral or
documentary evidence. He would further contend that the first appellate
court failed to see that presumption under Section 90 of the Indian
Evidence Act, 1872, will not relieve the propounder of the document
from proving the contents of the documents when the same is seriously
disputed. The entire burden of proof is on the plaintiff to establish that
she had right over the alleged suit cart track. But in this case, the
plaintiff failed to establish the existence of the cart track. Therefore, the
plaintiff is not entitled for any relief as claimed in the plaint. His further
contention is that no property was purchased by the plaintiff in S.F.
No.108. While so, the plaintiff cannot claim right of way over the
property of the defendant since the neighbouring land owner Mylsamy
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obtained a decree in his favour in O.S. No.459/1996 in respect of the said
cart track. The plaintiff is indirectly trying to get the relief based on the
suit filed by the neighbouring land owner Mylsamy, which is
unsustainable. Moreover, in the sale deed of said Mylsamy who
purchased the land in S.F. No.103, it is clearly mentioned that in S,F.
No.108 there is a cart track. Whereas, in Ex.A5 sale deed in favour of the
plaintiff, there is no such mentioning about the cart track running in S.F.
No.108/2A. Hence, the judgment and decree passed by the first appellate
court is liable to be set aside and prayed for allowing the present second
appeals.
9. On the other hand, the learned counsel appearing for the
respondent/plaintiff submits that the plaintiff has purchased 'A' schedule
property measuring 2.03 acres in S.F. No.107/B3 and the cart track
shown as 'B' schedule property in the plaint is situate in S.F. No.108/2A.
He would further submit that the 'B' schedule property is a plan marked
cart track and the same is sub divided in all revenue records. He would
further submit that the plaintiff is using the said cart track to reach the
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'A' schedule property and that there is no alternative cart track available
for the plaintiff to reach 'A' schedule property. He would further submit
that the existence of the cart track is clearly mentioned in the Will
executed by Kandasamy Kounder which is a parent document. The
defendant has sold an extent of 3.50 acres to one Mylsamy and when the
defendant attempted to obliterate the cart track the said Mylsamy filed a
suit in O.S. No.459/1996 against the defendant for the relief of
permanent injunction. The said suit was decreed in favour of Mylsamy.
Moreover, in the suit filed by the plaintiff in O.S. No.597/2009 against
the father of the defendant the same was withdrawn by the plaintiff since
the father of the defendant namely Thirumalaisamy was not alive at the
time of filing the suit. However, in the above suit, a Court commissioner
was appointed. He visited the suit property and filed his report in which
it is clearly stated about the existence of cart track. The defendant is
now attempting to annex the cart track along with his land by obliterating
the same. Hence, the plaintiff filed the suit for restoration of 'B' schedule
cart track and to restrain the defendant from causing any damage to the
suit cart track and also not to prevent the plaintiff from using the suit cart
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track. The trial court has only granted the relief of injunction restraining
the defendant from preventing the plaintiff from using the cart and the
other reliefs were rejected by the trial court, the plaintiff filed an appeal
in A.S.No.20/2018 before the Subordinate Court, Pollachi. The first
appellate court decreed the suit in entirety in favour of the plaintiff by
considering the oral and documentary evidence in a proper perspective,
which calls for any interference by this Court.
10. Heard on both sides. Records perused.
11. The appellant/defendant has come forward with a stand
denying existence of the cart track shown as 'B' schedule property in the
suit. The case of the plaintiff is that the 'B' schedule property is a plan
marked cart track and the same lies in S.F. No.108/2A. The plaintiff is
using the said cart track to reach the 'A' schedule property purchased by
him under a registered sale deed 10.11.1999. His further contention is
that since the defendant tried to obliterate the 'B' schedule cart track, the
neighbouring land owner namely Myilsamy, who was also using the cart
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track filed a suit in O.S. No.459/1996 and the same was decreed in his
favour. Therefore, the above facts would establish the existence of the
suit cart track. Thereafter, the defendant obliterated the cart track and
prevented the plaintiff from using the same. The existence of the cart
track was also mentioned in the commissioner's report filed in
O.S.No.597/2009 filed by the plaintiff.
12. The claim of the plaintiff was contested by the
appellant/defendant by stating that no such cart track ever existed and
therefore, there is no question of damaging any cart track arise. It is
further contended that the said Myilsamy has purchased a land in S.F.
No.103 and in his sale deed it was clearly mentioned about a cart track in
S.F. No.108 in which the said Myilsamy purchased his share. Where as,
in the sale deed of the plaintiff, there is no specific mention about the
cart track running in S.F. No.108/2A and the plaintiff has not purchased
any land in S.F. No.108. While so, the plaintiff cannot rely upon the
decree passed in O.S. No.459/1996 filed by the said Mylsamy. The
defendant would further submit that no commissioner ever visited his
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properties or the suit property. Hence, the Report and Plan filed in the
previous suit cannot be relied upon without examining the Advocate
Commissioner.
13. Admittedly, in Ex.A5 sale deed in favour of the plaintiff in
respect of 'A' schedule property, there is no specific mention about the
existence of the cart track. But, it is not in dispute that under Ex.A1, the
said Mylsamy has purchased 3.50 acres from the defendant's father
Thirumalaisamy in S.F. No.108/2B along with the cart track. The same
was confirmed in the suit in O.S. No.459/1996 filed by the said Mylsamy
against the defendant and his father Thirumalaisamy. The above facts
confirms that there is a cart track shown as 'B' schedule in S.F. No.108.
It is the contention of the plaintiff that the cart track was clearly
mentioned in the Will dated 28.08.1981, which is the parent document
executed by Kandasamy Kounder in favour of the defendant's father and
therefore, the said cart track was in existence for more than 40 years. It
is also submitted that the cart track was sub divided as 108/2A. The
defendant failed to rebut the above facts by producing the said Will.
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Moreover in Ex.A10 it is mentioned that the cart track in S.F.108/2A is in
joint enjoyment of Thirumalaisamy, father of the defendant. Therefore,
the existence of the cart track before it was obliterated by the defendant
is clearly established by the plaintiff. The commissioner's report filed in
O.S.597/2009 confirms the existence of the cart track.
14. Now it has to be seen whether the plaintiff has a right of usage
over the said cart track. According to the plaintiff, he is using the 'B'
schedule cart track to reach his 'A' schedule property. However, in the
documents filed by the plaintiff marked as Ex.A3 to Ex.A5 nothing is
mentioned about the said cart track. The plaintiff is relying upon the Will
dated 28.08.1981 which is the parent document for the plaintiff and the
defendant. According to the learned counsel for the respondent/plaintiff,
the execution of the Will and the mentioning of the cart track was not
disproved by the appellant/defendant and the said cart track under the
UDR scheme was shown as 'plan marked cart track' in the field map.
Therefore, the plaintiff is entitled to use the cart track as easementary
right by grant. The right of easement over 'B' schedule property is purely
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under the Will. It is an easement acquired by grant. An easement by grant
does not extinguish under Section 41 of the Easement Act, 1882 which
relates to an easement of necessity. While so, the appellant/defendant is
not entitled to prevent the respondent / plaintiff from using the 'B'
schedule cart track by damaging the same. The first appellate court has
rightly held that the plaintiff is entitled to use the 'B' schedule property as
cart track to reach his 'A' schedule property and the appellant / defendant
has no right to prevent the respondent / plaintiff from using the said cart
track and to damage the same. The judgment of the first appellate court is
well founded and supported by reasons. This Court has no hesitation to
hold that the plaintiff is entitled to the right of easement over plaint 'B'
schedule property.
15. Moreover, a perusal of the questions raised in the second
appeal hardly gives an impression that the above questions involves any
question of law much less substantial questions of law.
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16. In the result,
i. The second appeals are dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
ii. The common decree and judgment dated 07.12.2021 made in A.S.
No.20 of 2018 and A.S. No. 38 of 2018 on the file of the learned
Subordinate Judge, Pollachi, is upheld.
17.10.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Subordinate Judge, Pollachi
2. The District Munsif, Pollachi.
3. The Section Officer, VR Section, High Court, Madras.
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S.A.Nos.630 & 631 of 2022
K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery common judgment in
S.A.Nos.630 & 631 of 2022 and
17.10.2025
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