Madras High Court

Palanichamy vs Subramanian on 31 October, 2025

                                                                                                    S.A.No.1175 of 2019


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Reserved on                         14.08.2025
                                             Pronounced on                            31.10.2025
                                                                    Coram:

                         The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI

                                                   Second Appeal No.1175 of 2019

                     Palanichamy                                                              ..        Appellant
                                                                     versus

                     1.Subramanian
                     2.Periasami                                                               ..       Respondents

                     Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
                     the judgment and decree dated 06.06.2019 made in A.S.No.58 of 2017 on
                     the file of learned Additional Subordinate Judge, Namakkal, confirming the
                     judgment and decree dated 01.02.2017 made in O.S.No.511 of 2010 on the
                     file of Principal District Munsif, Namakkal.

                                  For Appellant       : Ms.Elizabeth Ravi and
                                                        Mr.D.Venkateswara Rao
                                  For Respondents     : Mr.C.Jagadish for R2
                                                        No appearance for R1

                     1




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                                                                                              S.A.No.1175 of 2019


                                                               JUDGMENT

The above second appeal arise out of the judgment and decree dated

06.06.2019 made in A.S.No.58 of 2017 on the file of learned Additional

Subordinate Judge, Namakkal, confirming the judgment and decree dated

01.02.2017 made in O.S.No.511 of 2010 on the file of Principal District

Munsif, Namakkal.

2.The unsuccessful plaintiff is the appellant herein.

3.The case of the plaintiff is that the suit property was allotted to the

share of the plaintiff's father vide partition deed dated 22.10.1999, who

executed a settlement deed dated 02.02.2007 in favour of the plaintiff. The

patta is also issued in favour of the plaintiff. In the plaint plan, the

panchayat road is shown as 'XY' and the property shown as ' P ' belong to

the plaintiff and the property shown as 'D, D1' belongs to the defendants.

The defendants have no right over the ' P ' property as shown in the rough

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plan. Moreover, the ' P ' property is about 3 feet height from the 'D1'

property and 5 feet height from the 'XY' Panchayat road. The defendants

taking advantage of their land lying on the east and north of ' P ' property

are attempting to take cart and the cattles through ' P ' property to reach the

Sellappa Colony from chidambarampatty using 'XY ' panchayat road, by

forming a pathway measuring 3 feet width to the east of ' P ' property. No

such pathway existed through the ' P ' property and was never used by the

defendants. Hence, the suit.

4.The defendants contention is that, the entire ' P' property was not in

possession and enjoyment of the plaintiff. The ' P ' property and ' D '

property are of the same height and on the east of ' P D ' lands there lies a

''Kalcut'' running south west direction and in the ' P ' property a three feet

width land lies as ''Tharisu'' and for about 55 years, the defendants and their

predecessor in title were using the above 3 feet width land to reach the ' D'

property from ' X Y ' panchayat road. Originally, the above ' P D ' property

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measuring 5.18 acres was owned by one Vaiyaburi gounder. On 13.05.1970

the father of the plaintiff purchased ' P ' property situate in S.No.146/7 and

thereafter on 02.02.2007 he executed a settlement deed in favour of the

plaintiff. The ' D ' Property is situate in S.No.146/6 and when cultivation

was not done, the defendants were using the ' P ' property. The said

pathway was granted to them through the sale deeds. Hence prayed for

dismissal of the suit.

5.The trial Court and the First Appellate dismissed the suit filed by

the plaintiff. Aggrieved by this, the present second appeal is preferred by

the plaintiff.

6.The learned counsel appearing for the plaintiff would submit that

the plaintiff is the lawful owner of the suit property and having proved

prima facie his title and possession, the same having been admitted by the

respondents, the Courts below ought to have decreed the suit in favour of

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the plaintiff. When the defendants claim a right of easement of passage

through a portion of the suit property, the onus shifts on the defendants that

there existed such a right, either by way of easement of necessity, or

prescription, where as, the defendants failed to prove their right of easement

either under Section 13 or Section 15 of the Indian Eastments Act of 1882.

7. He would further submit that the right of easement can be claimed

over the property belonging to another, called as servient owner, by a

dominant owner, there must be such a right of easement, either by way of

counter claim or by a separate suit either under Section 33 or Section 35 of

the said Act, instituted by such dominant owner against such survient

owner, such a right cannot be determined in a suit for permanent injunction

simplicitor. Therefore, in the absence of any counter claim under Order 8

Rule 6 -A of Code of Civil Procedure, by the 2nd defendant, the Courts

below ought not to have decided the issue relating to the easementary right.

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8.The interpretation of the recitals in Ex.B3 made by the Courts

below as if there is a grant of such right of easement on the 2nd defendant is

incorrect. No such right has been granted neither under Ex.B.3 nor under

Ex.B.1 in favour of the defendants. In fact, the 2nd defendant has admitted

that no such passage exist over the suit property. Further, the 2nd defendant

examined as D.W.1 admitted above the existence of passage on the south

west side of the plaintiff's property belonging to his father, the 1 st defendant

herein. The Advocate Commissioner also in his report and plan has stated

that there was no passage existed in the suit land. He would further submit

that the 1st defendant had purchased the eastern side of the suit property

even before the 2nd defendant purchased it under Ex.B2 on 21.08.2008 and

therefore, the claim of easement of necessity stands extinguished by reason

of Section 41 and 42 of the Act, since it is only a floating easement. At the

most the defendants are entitled only for damages under Section 33 of the

Act, but not entitled to claim right of use under Section 35 of the said Act.

He would further submit that the question of easementary right cannot be

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adjudicated in a suit for permanent injunction filed by the servient owner

and that in a suit for injunction unless there is a counter claim for

declaration of easementary right, the same cannot be adjudicated. To

support his contention, he has relied upon the judgement reported in AIR

1999 Kerala 405.

9. The learned counsel further submits that the '' easement of grant ''

is a matter of contract between the parties and that has to be governed by the

terms of contract and hence, even after the necessity got extinguished, the

right over the said pathway will not extinguish like an easement of

necessity. The facts of the present case, would show that no specific

document had never been executed between the parties with regard to the

grant of pathway. Moreover, an ''easement of necessity'' is extinguished

when the necessity comes to an end as per Section 41 of the Indian

Easement Act. After the purchase of the 1st defendant, the land lying to the

east of the suit property, the necessity for using the ' P ' land comes to an

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end. Hence, no perpetual right can be conferred on the defendants with

regard to the pathway in the suit property.

10. The learned counsel would further submit that when the judgment

of the final Court of fact is based on misinterpretation of documentary

evidence or on consideration of inadmissible evidence or ignoring material

evidence, this Court in Second Appeal is entitled to interfere with the

judgment. To support his contention, he has relied upon the judgment

reported in (2002 ) 6 Supreme Court Cases 404.

11. Hence, prayed for setting aside the judgment and decree dated

06.06.2019 in A.S.No.58 of 2017 confirming the judgment and decree dated

01.02.2017 passed in O.S.No.511 of 2017.

12.On the other hand, the learned counsel for the respondents would

submit that under Ex.B.1 and Ex. B.3 it is clearly mentioned that how the

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defendants should reach their land and that the same cannot be construed as

''floating easement''. The defendants have also filed their objections to the

Commissioner's report. The trial Court as well as the First Appellate Court

has rightly concluded that no injunction could be granted against the

defendants, which calls for no interference by this Court.

13.Heard on both sides and records perused.

14. An 'easement by grant' is a matter of contract, the dominant owner

retains the right to use the granted pathway even if a new, alternative, or

more convenient route is established. An easement of necessity arises only

when a property is land locked and has no other possible means of access.

This right is based purely on absolute necessity and it is automatically

extinguished when the necessity ceases to exist, i.e., when an alternative

pathway becomes available. Now it has to be seen whether the defendants

are enjoying the right of easement by grant or easement of necessity.

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15. The schedule of property mentioned in Ex.B1 and Ex.B3 are

extracted as under:

Ex.B.1

“fpHnky; ehkf;fy; ghijapypUe;J ,f;fpiua epyj;jpw;F bjd;g[wk; ehd; xU Rg;guhaf;ft[z;lUf;F fpiuak; bra;J bfhLj;jpUf;Fk; epyj;jpd; fpHg[uk; Xukha; fl;Lf;fiu tHpaha; tlf;F Kfkhf bts;shik fhyj;jpy;

                                  khLfSf;F         tha;bghl;o           nghl;Lk;          rfy     <!;bkz;L
                                  ghj;jpafSk; jhd; fpiuak;.” vd;W fz;Ls;sJ/
                                  Ex.B.3

                                        “,e;j fpiua epyj;jpd; fpHg[w Xukhf v';fspy; 1
                                  yf;fkpl;lth;     jk;gp     rpd;dhf;ft[z;lh;             tlg[w   ghfj;Jf;F

bts;shik fhyj;jpy; khl;Lf;F tha;bghl;o nghl;L gpoj;Jf; bfhz;L ghfj;jpy; ,Ue;J tlf;F Kfkhf Ms; ML khL ele;J bfhz;L bry;Yk; jlghj;jpaKk;. ,e;j epyj;jpy; bts;shik ,y;yhj fhyj;jpy; nky;fz;l tlg[w ghfj;Jf;F tz;o Xl;of; bfhz;L nghFk; ghj;jpaKk;”

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16. Therefore, the grant of pathway has been established by the

defendants by producing Ex.B.1 and Ex.B3 sale deeds. The grant has been

authenticated by virtue of specific recitals in the above documents. Since

the right is created by a deed, it is a permanent right unless the grant itself

specifies a condition for its termination. Though it is contended on the side

of the plaintiff about the availability of another pathway, the same does not

nullify the original arrangement. Since it is an easement by grant it is not

automatically gets extinguished just because an alternate pathway becomes

available. Only if it is an easement of necessity, the provision of Section

41 of the Easement Act of 1882 can be invoked. Hence, the Courts below

have rightly rejected the relief of permanent injunction as claimed by the

plaintiff. No perversity or infirmity found in the findings of the Court below