Madras High Court

Thavasimuthu vs Ramasamy on 25 October, 2025

                                                                                         S.A.No.240 of 2014

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                       RESERVED ON                        : 09.09.2025
                                       PRONOUNCED ON                      : 25.10.2025

                                                           CORAM:

                            THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE

                                                    S.A. No. 240 of 2014
                                                            and
                                                     M.P. No. 1 of 2014
                     Thavasimuthu,
                     S/o. Sembulinga gounder,
                     Kanavanoor,
                     Illuppili Village,
                     Bhavani Taluk
                     Erode District.                                 ...Appellant/Appellant/Plaintiff

                                           Versus
                     1. Ramasamy
                     S/o. Pachamuthu gounder.
                     Reddiyar Thottam,
                     Illupili Village,
                     Bhavani Taluk,
                     Erode District.

                     2.Pachiammal
                     W/o. Govinda gounder.

                     3.Madheswari,
                     W/o. Late Govinda goiunder,

                     4.Manjunathan,
                     S/o. Late Selvaraj,

                     5.Kunjummal,
                     W/o. Late Kuppusamy @ Mani,

                     1/13


https://www.mhc.tn.gov.in/judis                ( Uploaded on: 25/10/2025 04:04:41 pm )
                                                                                           S.A.No.240 of 2014



                     6.Ravichandran,
                     S/o. Late Kuppusamy @ Mani,

                     7.Sangeetha,
                     W/o. Late Kuppusamy @ Mani,

                     8.Ramakkal,
                     W/o.Late Raju @ Kolanda gounder.

                     9.Alamelu,
                     W/o. Late Ramasamy.

                     10.Govindammal,
                     W/o. Subramaniam.

                     Respondents 2 to 10 are residing at:
                     Kanavanoor,
                     Illupili Village,
                     Bhavani Taluk,
                     Erode District.

                     11.Ekambaram,
                     S/o. Pachamuthu gounder,
                     Reddiyar Thottam.
                     Illupuli Village,
                     Bhavani Taluk,
                     Erode District.    ...Respondents/Respondents/Defendants 1, 3 to 12

                     PRAYER in S.A.:
                                  Second Appeal filed under Section 100 of the Civil Procedure
                     Code against the judgment and decree dated 03.09.2013 made in A.S.
                     No. 51 of 2010 on the file of the Sub Court, Bhavani, Erode District
                     confirming the judgment and decree dated 31.08.2010 made in O.S. No.
                     463 of 1999 on the file of the learned First Additional District Munsif


                     2/13


https://www.mhc.tn.gov.in/judis                  ( Uploaded on: 25/10/2025 04:04:41 pm )
                                                                                              S.A.No.240 of 2014

                     Court, Bhavani by allowing this Second Appeal before this Court with
                     costs throughout and thus render justice.
                     PRAYER IN M.P.:
                                  To grant an order of interim injunction restraining the respondents,
                     their men and agents from in any way interfering with my right of
                     enjoyment of the suit cart track in the petition mentioned proeprty, which
                     is the subject matter in O.S. No.463 of 1999 on the file of the First
                     Additional District Munsif Court, Bhavani pending disposal of the above
                     second appeal before this Hon'ble Court and thus render justice.
                     APPEARANCE OF PARTIES:
                                  For Appellant     : Mr.N.Manokaran, Ms.R.Renukadevi,
                                               Ms.M.Adhishree, Advocates.

                                  For Respondent    : Mr.S.Lakshmanasamy for R1, R3,
                                              R8 to R11.
                                              R4 to R7 – served.

                                                          JUDGMENT

Heard.

2.The plaintiff in O.S. No. 463 of 1999, on the file of the I

Additional District Munsif-cum-Judicial Magistrate, Bhavani, has filed

this Second Appeal, aggrieved by the concurrent dismissal of his suit by

the Trial Court and the First Appellate Court in A.S. No. 51 of 2010 on

the file of the Sub Court, Bhavani.

3.In this appeal, the plaintiff before the Trial Court is the appellant,

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

and the defendants are the respondents. For the sake of convenience, the

parties will be referred to in the same rank as they stood in the Trial

Court.

4.The brief facts necessary for the disposal of this Second Appeal

are as follows:— The plaintiff instituted the suit seeking (i) a declaration

of his easementary right over the suit cart track, and (ii) a decree of

permanent injunction restraining the defendants from interfering with his

right of user. The plaintiff, along with his brother, had purchased the

property comprised in R.S. Nos. 419/1 and 419/2 under Ex.A1 — sale

deed dated 30.10.1986 — which conferred a right to use the mamool cart

track running from R.S. No. 414 through R.S. No. 417. Subsequently, the

plaintiff’s brother executed a release deed, Ex.A4 dated 02.12.1998,

relinquishing his share in favour of the plaintiff. The plaintiff thus

claimed easementary rights by prescription, by grant, and by necessity.

5.The defendants, on the other hand, denied the plaintiff’s claim of

right over the suit cart track, contending that it had been formed by Naina

Gounder, the father of the second defendant, by utilising lands purchased

from the first respondent and others, as well as lands obtained under an

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

exchange deed, Ex.B2 dated 04.10.1983. They asserted that the suit cart

track is, therefore, the absolute property of Naina Gounder and his heirs.

The defendants further contended that the plaintiff has an alternative

pathway to reach his property and has not used the suit cart track for the

statutory period necessary to acquire an easement by prescription. They

also denied that any easementary right had been created by grant.

6.Upon admitting the Second Appeal on 20.04.2022 this Court

formulated the following substantial questions of law for consideration

which are reproduced verbatim here below:

“a) Whether both the Courts below failed to properly appreciate the easementary right as provided under Ex.Al and A4 documents?

b) Whether the findings of both the Courts below can be termed as perverse due to improper appreciation of the oral and documentary evidence?”

7.The suit property is a cart track providing access to the

Guruvarettiyur Road. The dispute pertains solely to the use of the suit

cart track. The defendants claim exclusive rights over the property as the

successors of Naina Gounder. The plaintiff relies upon Ex.A1, the sale

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

deed dated 30.10.1986, which recites that the property was conveyed

with the mamool right of usage over a cart track. The question is whether

the cart track referred to in Ex.A1 is the same as the suit cart track. The

onus of proof in this regard lies upon the plaintiff.

8.As noted earlier, the plaintiff asserts a claim of easement by

prescription over the suit cart track. The acquisition of an easement by

prescription is governed by Section 15 of the Indian Easements Act,

1882. In accordance with the said provision and the settled principles

laid down in judicial precedents, the following essential ingredients must

be established to sustain a claim of easement by prescription:

(i)The enjoyment must have been peaceable.

(ii)It must have been as an easement and as of right.

(iii)The enjoyment must have been open, uninterrupted, and continuous for a period of twenty years.

9.In the present case, the defendants have asserted absolute

ownership and possession of the suit cart track. Consequently, the burden

of proof rests upon the plaintiff to positively establish his claim of

easement.

10.The plaintiff places reliance on Ex.A1 dated 30.10.1986, under

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

which the vendor, one Vellaiya Gounder, conveyed the property together

with the mamool right of access over a cart track. However, the

defendants have demonstrated that the cart track referred to in Ex.A1 is

not the same as the suit cart track. The suit cart track was, in fact, formed

by Naina Gounder after he effected an exchange of his property with his

neighbour, another Vellaiya Gounder, under Ex.B2 dated 04.10.1983.

Although both documents bear the name “Vellaiya Gounder,” the

defendants have established that they are two different individuals - one,

a resident of Sankari, Salem District, who executed documents by

affixing his thumb impression, and the other, a resident of Illipilli village,

who executed documents by signing his name.

11.Furthermore, Ex.B2 clearly records that the parties had

exchanged their respective lands for the specific purpose of forming a

cart track to facilitate agricultural operations. It is evident, therefore, that

the exchange deed was executed expressly for the creation of the said

cart track. Consequently, the plaintiff’s attempt to assert a right over the

suit cart track on the mere basis of the similarity in names between his

vendor and the executant of Ex.B2 is wholly untenable.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

12.The exchange deed, Ex.B2, was executed on 04.10.1983, and

the suit cart track came into existence subsequent thereto. The plaintiff,

however, purchased his property only under Ex.A1 dated 30.10.1986,

and instituted the present suit on 14.09.1999. Even reckoning the period

of enjoyment from the date of formation of the cart track, the statutory

period of twenty years required to establish an easement by prescription

had not elapsed. Accordingly, the plaintiff has failed to substantiate his

claim of easement by prescription.

13.With respect to the claim of easement by grant, the plaintiff

places reliance on the recitals contained in Ex.A1. However, as already

discussed, the plaintiff’s vendor is distinct from the party to the exchange

deed, and the mamool cart track mentioned in Ex.A1 does not pertain to

the suit cart track. The Advocate Commissioner’s reports, Exs.C1 to C6,

further reveal the existence of two other cart tracks in the vicinity of the

plaintiff’s property, apart from the suit cart track. Moreover, since the

plaintiff’s vendor was neither a common owner with the defendants nor

possessed of any right over the suit cart track, he could not have

conveyed such a right to the plaintiff. Accordingly, the plea of easement

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

by grant is also not proved.

14.With regard to the claim of easement by necessity, the

Advocate Commissioner’s reports, Exs.C5 and C6, clearly disclose the

existence of another cart track situated in front of the plaintiff’s property,

marked as F1, F2, and F3, providing access to the Guruvarettiyur Road.

In view of the availability of this alternative pathway, the plaintiff cannot

claim an easement of necessity.

15.On behalf of the plaintiff, it was contended that Exs.C5 and C6,

the Advocate Commissioner’s report and sketch, ought not to have been

taken into consideration, as the Advocate Commissioner had been

appointed nearly seven years after the institution of the suit and the

inspection was conducted at a belated stage. It was further urged that the

earlier reports of the Commissioner, Exs.C1 to C4, contained no

reference to the existence of the roads marked as F1, F2, and F3.

According to the appellant, when an earlier Commissioner’s report was

already on record, the subsequent report, Exs.C5 and C6, could not have

been relied upon without first setting aside the previous one.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

16.In this context, the reason for the delay in filing the application

seeking appointment of the Advocate Commissioner has been elaborately

dealt with by the Trial Court, which noted the interim stay granted by this

Court and the subsequent amendment of the plaint by the plaintiff.

Furthermore, all the Commissioner’s reports, Exs.C1 to C6, were

admitted in evidence without objection. The plaintiff did not raise any

objection to the filing of the later Commissioner’s report and sketch,

Exs.C5 and C6. The plaintiff, for his part, did not challenge the

correctness or accuracy of Exs.C5 and C6, but merely questioned the

delay in the appointment of the Advocate Commissioner. It is well settled

that when an earlier report is neither found to be wholly erroneous nor

inconsistent, it need not be set aside before directing a subsequent

inspection. In the present case, the second Commissioner was appointed

only to provide additional particulars supplementing the earlier report.

Hence, the consideration of Exs.C5 and C6, without formally setting

aside Exs.C1 to C4, cannot be construed as fatal to the proceedings.

Accordingly, the contention advanced on behalf of the appellant stands

rejected.

17.The Hon’ble Supreme Court, in Justiniano Antao & Ors. v.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

Smt. Bernadette B. Pereira, (AIR 2005 SC 236), held as follows:

“....Since the plaintiff has an access through the southern side of her property we see no reason why the property of other persons be used as an access to her house. If the plaintiff had no access to her house except through that of the property of the defendants then perhaps we would have considered appreciating as easement of necessity. But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years....”

Applying the aforesaid principle, it is evident that the plaintiff has failed

to establish any justification for claiming an easement over the

defendants’ property, whether by prescription or by necessity.

18.In view of the foregoing discussion, this Court is of the

considered opinion that the concurrent findings of the Courts below,

arrived at upon due appreciation of Ex.A1 and the other evidence on

record, are well-founded, supported by legal evidence, and in conformity

with the statutory provisions. No perversity or substantial question of law

is found to arise for consideration in this Second Appeal.

https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/10/2025 04:04:41 pm )

19.Accordingly, both the substantial questions of law are answered

against the plaintiff/appellant. The judgments and decrees of the Trial

Court and the First Appellate Court are hereby confirmed. Consequently,

this Second Appeal stands dismissed with costs. Connected civil

miscellaneous petition is closed.