Madras High Court
Koundiammal vs Marappan on 12 September, 2025
S.A.No.1087 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.07.2025
Pronounced on 12.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.1087 of 2019 and
C.M.P. No.23666 of 2019
1. Koundiammal
2. Saraswathi
3. Kannammal
4. Selvamani
5. Nallammal
6. Selvaraj ...Appellants
Vs.
Marappan ...Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 26.03.2019 passed in A.S. No.16 of 2018, on
the file of the Subordinate Judge, Paramathy, reversing the Judgment and
decree dated 02.06.2014 passed in O.S. No.325 of 2004, on the file of the
District Munsif cum Judicial Magistrate, Paramathy.
For Appellants : Mr.T.A. Shagul Hameed
For Respondent : Mr.A. Sundaravadhanan
Page 1 of 17
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S.A.No.1087 of 2019
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 26.03.2019 passed in A.S. No.16 of 2018, on the file of
the Subordinate Judge, Paramathy, reversing the Judgment and decree
dated 02.06.2014 passed in O.S. No.325 of 2004, on the file of the
District Munsif cum Judicial Magistrate, Paramathy.
2. The defendants in O.S. No.325 of 2004 on the file of the District
Munsif cum Judicial Magistrate, Paramathy, are the appellants in the
present appeal. The plaintiff filed the above suit for (i) declaration to
declare his right in BC pathway, (ii) for consequential injunction
restraining the defendant 1 to 7 from preventing the plaintiff from
enjoying the above pathway and, (iii) for mandatory injunction directing
the defendants 1 to 7 to remove the iron fence put up in BC pathway.
3. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
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4. The case of the plaintiff was that the land in survey number 6/1
of Perunguruchi Village, Paramathy Village Taluk, is the absolute
property of the 1st defendant and there exists BC pathway for more than
30 years. The plaintiff and their predecessor in title are using the said
pathway to reach their land from "Oormandai" by way of easement by
prescription. The further contention of the plaintiff is that the plaintiff is
using the alleged BC pathway to reach his lands shown as P1 to P3 in the
plaint plan. The defendants had requested the plaintiff to sell his property
to them and since the same was refused by the plaintiff, the 1 st defendant
erected barbed wire fencing in his land thereby preventing the plaintiff
from reaching his land through the said pathway. Hence, the plaintiff
was constrained to file the above suit for the reliefs as stated above.
5. On the other hand, the 1st defendant resisted the claim of the
plaintiff by stating that there is no such pathway as mentioned in the
plaint plan. It is submitted that the house of the plaintiff is situate in
survey number 6/3 and from the front yard of his house, his land starts
and hence, there is no necessity to the plaintiff to enter into the land of
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the 1st defendant in survey number 6/1. Only with a view to harass the
defendants, the plaintiff is claiming noval right of pathway over the land
of the 1st defendant in survey number 6/1. His further submission is that
on the northern eastern portion of survey number 6/1, there exists a
'parai' known as 'kalaparai' and when the survey number 6/1 was owned
by various persons, the said 'kalaparai' was used as kalam. To reach the
said 'parai', there was a pathway in the southern side of survey number
6/1 which was upto the end of eastern side of survey number 6/1 and
turns towards north and reach the said 'parai'. When the 1st defendant
purchased the entire land, there is no necessity for others to use the said
'kalaparai' and hence the use of the said pathway by others has been
extinguished for the past 30 years. The said pathway was used only to
reach the said 'kalaparai' and not to reach the lands of the plaintiff.
Hence, there is no question of easement by prescription to the plaintiff to
use the alleged suit pathway.
5.1. The 7th defendant in his written statement submitted that no
such pathway exists to the south of the 7th defendant land. Though the
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plaintiff claims 15 feet width pathway in the lands of the defendants,
however, the same is not properly described in the suit schedule. The
plaintiff in para-7 of the plaint has stated that the said pathway runs in
between the lands of the plaintiff and the defendants, where as, in para-
10 it is stated that the said BC pathway runs through the lands of the
defendants. The 7th defendant further stated that on 04.01.2011, he had
purchased the properties in survey number 6/1 and from then onwards, he
is in possession and enjoyment of the same, in which the plaintiff has no
right whatsoever. Moreover, even in the amended plaint, there is no
cause of action stated against the 7th defendant. While so, the plaintiff is
not entitled for the relief of mandatory injunction as against the 7th
defendant. It is also stated that the plaintiff has not filed the above suit
for easementary right and therefore, by virtue of sale deed dated
27.08.1943, the plaintiff cannot seek any relief as against the 7th
defendant. It is further stated that the plaintiff was never in usage of the
alleged pathway to reach his lands shown as P1 to P3 in the plaint plan.
In fact, the lands lying on the west of P1 lands belongs to the plaintiff
and only through the above land, the plaintiff used to reach his lands
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shown as P1, P2 and P3. Hence, the plaintiff is not entitled for any relief
as claimed in the suit.
6. The trial court accepted the defence put forth by the defendants
and dismissed the suit. Aggrieved by the same the plaintiff preferred the
appeal suit in A.S. No.16 of 2018, on the file of the Subordinate Judge,
Paramathy, and the first appellate court reversed the findings of the trial
court and allowed the appeal preferred by the plaintiff by holding that the
existence of BC pathway is mentioned in Ex.A9 FMB plan to reach the
lands of the plaintiff shown as P1 to P3 in the plaint plan and that in
Ex.B1 document the plaintiff was given the right to reach the 'kalaparai'
through the said pathway and therefore, the first appellate court
concluded that the plaintiff has right over the BC pathway to reach his
lands shown as P1 to P3. However, the first appellate court rejected the
claim for the relief of manadatory injunction by holding that since the
plaintiff is using the said pathway to reach 'kalaparai' and the same is also
admitted on both sides, the plaintiff is not entitled for the relief of
mandatory injunction.
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7. Aggrieved by the judgment and decree dated 26.03.2019 of the
first appellate court, the defendants have come forward with the present
second appeal.
8. The Second Appeal has been admitted on the following
Substantial question of law.
"Whether the lower appellate court was right in
granting a decree on the basis of easement by prescription
in the absence of proof of right of the plaintiff to use the suit
pathway running along ABC in the plaint rough plan to
reach his land in S.Nos.10/1, 10/3 and 9/1 shown as P1, P2
and P3 in plaint Rough Plan?
9. The learned counsel for the appellants/defendants would submit
that the plaintiff has instituted the suit by pleading that he has right of
way over the BC pathway to P3 land as of right and acquired the same as
an easement by prescription. There was no pleading to the effect that the
plaintiff had acquired the right of way by grant. It is settled law that the
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plaintiff cannot go beyond the pleadings and the parties are not entitled
to give evidence without pleadings. Admittedly it is a suit for
easemantary right and P3 land does not possess easement in defendants'
D land. There is no liability imposed on D land for the beneficial
enjoyment of P3 land. It is further submitted that the said P3 land is not
the dominant heritage; that the plaintiff is not the dominant owner and
the D land is not the servient heritage and that the defendants are not the
servient owners and as such the plaintiff has no right of way of the
defendants' D land to reach P3 land. The learned counsel further submits
that it is an admitted case of the plaintiff that the suit BC pathway
absolutely belongs to the defendants and it is nobody's case that it is the
common pathway. In such circumstances, the plaintiff without proving
his easementary right of way to the P3 land, is not entitled for the decree.
His further submission is that no issue was framed with regard to the
easementary right by prescription. In every suit for injunction restraining
interference with an easement by prescription, issue has to be framed
with regard to easementary right by prescription, which is not done in
this case. The first appellate court misunderstood the case and proceeded
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on the wrong notion that the suit is for declaration of title and injunction
which vitiates the judgment of the first appellate court. In fact, the
plaintiff failed to prove the essential characters of easement which are
enumerated under Sections 4 and 12 of the Indian Easement Act, 1882.
9.1. The learned counsel further submits that the plaintiff did not
produce the title deeds of P1 to P3 land to claim and prove that the right
of way is annexed to P1 to P3 land over defendants' D land. When
nothing was produced before the Court to show that P1 to P3 land is
annexed with the right of way over the defendants' D land, it has to be
concluded that the plaintiff has no right of way through defendants' D
land to reach P3 land. The plaintiff when failed to prove his title or right
over the suit pathway and in absence of any concrete evidence, it is
highly illogical to decree the suit by the first appellate court.
9.2. The learned counsel further submits that the pathway on the
defendants' D land was only for "kalaparai" and the BC pathway turns to
north and leads only to "kalaparai" and not to P3 land as claimed by the
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plaintiff, which is evident from Ex.A9 FMB plan. The plaint plan
marked as Ex.A6 showing the ABC pathway as if it is leading to P3 land
is absolutely wrong and misleading. He would further submits that there
is a specific provision for suits relating to easements i.e., Section 31 of
the Tamil Nadu Court Fees and Suit Valuation Act, 1955, and the relief in
respect of easements has to be valued only under the said provision.
Hence, the first appellate court erred in granting the relief claimed by the
plaintiff.
10. On the other hand, the learned counsel appearing for the
respondent/plaintiff submitted that the plaintiff has filed the suit for
declaration on the ground that he has right to the suit pathway and the
declaration is sought only to declare that he has right over the suit
pathway as a right of easement by prescription and that was properly
appreciated by the first appellate court, which warrants no interference
by this Court.
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11. Heard on both sides. Records perused.
12. The claim of the plaintiff is that he has right over the suit BC
pathway to reach his P3 land as a right and acquired the same as an
easement by prescription. On the other hand, the 1 st defendant resisted
the claim of the plaintiff by stating that there is no such pathway as
mentioned in the plaint plan. According to the 1st defendant, the house
of the plaintiff is situate in survey number 6/3 and from the front yard of
his house, his land starts and hence, there is no necessity for the plaintiff
to enter into the land of the 1st defendant in survey number 6/1. The
further contention of the learned counsel is that on the northern eastern
portion of survey number 6/1, there exists a 'parai' known as 'kalaparai'
and when the survey number 6/1 was owned by various persons, the said
kalaparai was used as 'kalam'. To reach the said 'parai', there was a
pathway in the southern side of survey number 6/1 which was upto the
end of eastern side of survey number 6/1 and turns towards north and
reach the said 'parai'. When the 1st defendant purchased the entire land,
there is no necessity for others to use the said 'kalaparai' and hence the
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use of the said pathway by others has been extinguished for the past 30
years. The said pathway was only to reach the said 'kalaparai' and not to
reach the lands of the plaintiff. According to the defendants, though the
plaintiff claims 15 feet width pathway in the lands of the defendants, the
same is not properly described in the suit schedule.
12.1. On a perusal of P.W.1 cross examination, it is seen that he has
categorically deposed as follows:
'1-k; gpujpthjp ngUkhs; fTz;lUf;F ehd; jhth ghij
Nfhhpa epyk; g+h;tPfkhdJ ghj;jpag;gl;lJ."
'gp 3 ahf fhz;gpf;fg;gl;Ls;s epyk; r.vz;.9/1 MFk;.
mjw;F jhd; jlk; ghj;jpak; Nfl;L jhf;fy;
nra;Js;Nsd;."
'ePz;l ehshf mDgtj;jpd; Nghpy; jhd; ,e;j jl
ghj;jpak; ehd; Nfl;Ls;Nsd;."
"ehd; trjpAhpik mbg;gilapy; ,e;j tof;if jhf;fy;
nra;Js;Nsd; vd;why; rhp jhd;. trjp top chpik
mbg;gilapy; ehd; ePjpkd;w fl;lzk; nrYj;jtpy;iy."
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Hence, it is the specific case of the plaintiff that he is claiming right over
the suit pathway by way of easement by prescription. However, no issue
was framed in this regard. The plaintiff failed to establish through oral
and documentary evidence that he has acquired right over the suit
pathway by way of easement by prescription as contemplated under
Sections 4 and 12 of the Indian Easement Act, 1882. On perusal of
Ex.A9 FMB plan, it is seen that the alleged pathway on the defendants' D
land turns to north and leads only to 'kalaparai' and not to P3 land as
claimed by the plaintiff. Therefore, the plaint plan marked as Ex.A6
showing the BC pathway leading to P3 land is absolutely misleading.
Moreover, P.W.1 himself admitted in his cross examination that there is
no disturbance from the defendants for using the BC pathway to reach
'kalaparai'. But, the plaintiff failed to establish that he is entitled to use
BC pathway to reach P3 land. Even in the relief claimed by the plaintiff
seeking easementary right over the BC pathway, it is not specified as to
where the BC pathway reaches and what for the pathway right is claimed.
When the plaintiff is not specific about his case, the first appellate court
ought not to have granted the decree in favour of the plaintiff.
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Moreover, the 1st defendant contends that the land which is shown as
blank on the western side of P1 land in Ex.A6 rough plan belonged to
the plaintiff. The abovesaid land had been purchased by the plaintiff by
virtue of a sale deed dated 08.07.1996, well before filing of the suit in the
year 2002. The plaintiff with malafide intension suppressed the above
fact to mislead the court. It is further submitted by the defendants that the
plaintiff is using the pathway of 10 feet wide on his own land which is
on the southern side of P land and D land to reach P1 to P3 land, which is
evident from Ex.B2 photographs and therefore, there is no necessity for
the plaintiff to use the defendants' land in S.No.6/1. The above
contentions were not rebutted by the plaintiff. Therefore, it is made clear
that the plaintiff has suppressed the fact that he is having alternative
pathway to reach P3 land. Moreover, the plaintiff has not sought for the
relief of easement by necessity. Eventually, the plaintiff failed to
establish that he has right over the BC pathway as a right of easement by
prescription to reach P3 land. Moreover, Ex.P9 FMB plan reveals that
the said BC pathway is leading only to reach the 'kalaparai' and not
leading to reach P1 to P3 land.
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12.2. Even on a perusal of Ex.P1 sale deed in favour of the
plaintiff, it is seen that the right of pathway is only to reach the said
'Kalaparai'. Moreover, P.W.2 in his cross examination categorically
admitted that the plaintiff is in possession and enjoyment of the lands
shown as P1, P2 and P3 and he has alternative pathway to reach the
above lands. Therefore, from the above evidence it is made clear that the
plaintiff is not using BC pathway to reach P3 land. Therefore, the trial
court rightly held that the plaintiff has failed to establish his right over
the BC pathway to reach P3 land. The first appellate court erred in
granting the decree on the basis of easement by prescription in the
absence of proof of right of the plaintiff to use the suit pathway to reach
his lands shown as P1, P2 and P3 in the plaint rough plan. Therefore, the
judgment and decree of the first appellate court is liable to be set aside.
Accordingly, the substantial question of law is answered in favour of the
appellant.
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13. In the result,
i. The Second Appeal is allowed. No costs. Consequently connected
miscellaneous petition is closed.
ii. the decree and judgment dated 26.03.2019 passed in A.S. No.16
of 2018, on the file of the Subordinate Judge, Paramathy, is set
aside.
iii. The Judgment and decree dated 02.06.2014 passed in O.S. No.325
of 2004, on the file of the District Munsif cum Judicial Magistrate,
Paramathy, is upheld.
12.09.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The the Subordinate Judge, Paramathy
2. The the District Munsif cum Judicial Magistrate, Paramathy.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J.
bga
Pre-delivery judgment in
S.A.No.1087 of 2019 and
12.09.2025
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