Madras High Court

The Managing Trustee vs R.Vijaya Baskar on 12 September, 2025

                                                                                            S.No.15 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          Reserved on                          17.07.2025
                                         Pronounced on                         12.09.2025
                                                             Coram:

                         The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI

                                            Second Appeal No.15 of 2020

                     1.The Managing Trustee,
                       Neycer Educational Trust,
                       Neycer India Limited,
                       Panruti Main Raod,
                       Vadalur, Kurinjipadi Taluk.

                     2.The Principal,
                       Tripuvaraneni Vidayalaya,
                       Vadalur, Panruti Main Road,
                       Apatyhanapuram,
                       Vadalur, Kurinjipadi Taluk                                      ..   Appellants
                                                              versus

                     1.R.Vijaya Baskar

                     2.R.Vijaya Raghavan

                     3.The Executive Officer,
                       Town Panchayat,
                       Vadalur, Kurinjipadi Taluk.

                     4.The Tahsildar,
                       Taluk Office,
                       Kurinjipadi Taluk.

                     1




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                                                                                                  S.No.15 of 2020

                         Kurinjipadi Taluk,
                                                                                             ..   Respondents

                     Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
                     the judgment and decree dated 12.07.2019 in A.S.No. 36 of 2016 on the file
                     of learned II Additional Sub ordinate Judge, Cuddalore, confirming the
                     judgment and decree dated 09.02.2016 made in O.S.No.196 of 2010 on the
                     file of learned Principal District Munsif, Cuddalore.

                                  For Appellants     : Mr.K.A.Ravindran

                                  For Respondents : Mr.K.Raju for R1
                                                      Mr.P.Gurunathan, Additional Govt.Pleader for R3
                                                       Mr.V.Ramesh, Government Advocate for R4
                                                       No appearance for R2


                                                              JUDGMENT

This Second Appeal is directed against the judgment and decree dated

12.07.2019 in A.S.No. 36 of 2016 on the file of the II Additional Sub

ordinate Judge, Cuddalore, confirming the judgment and decree dated

09.02.2016 made in O.S.No.196 of 2010 on the file of the Principal

District Munsif, Cuddalore.

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2. The case of the plaintiff in brief is as follows:

The suit property originally belonged to one Chinnaraju. On

15.02.1982 he purchased 8 cents out of 26 cents in the suit S.No.80/8A and

thereafter he sold 9 cents in favour of one Balakrishnan under the sale deed

dated 20.12.1982.

2.1.'A' schedule property was purchased by the plaintiff's father

Rajalingam from the said Chinnaraju for valid consideration under a

registered sale deed dated 11.03.1985. The property in the suit survey

number was sold by Chinnaraju after forming a common pathway and the

same is reflected in the sale deed, executed by the said Chinnaraju in favour

of Balakrishnan.

2.2.It is further submitted that 'B' schedule property is a poromboke

land and it was in the possession of the vendor of the Rajalingam and

thereafter, Rajalingam was in peaceful possession of the suit property by

putting thatched house which is now leased out. Hence, the plaintiff's father

and his vendor were in open and hostile possession of the 'B' schedule

property and also had possessory right over the same. The properties sold in

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favour of Balakrishnan was purchased by the 1st defendant trust on

07.02.1996. Thereafter, the adjacent property was also purchased by the 1st

defendant trust through another sale deed dated 22.01.1997. The above

documents reflect the boundaries and existence of the pathway from east to

west connecting the Panruti main road upto the suit schedule property. The

plaintiff's father, only after confirming the pathway purchased the 'A'

Schedule property. While so, the 1st defendant constructed a Matriculation

School administered by the 2nd defendant annexing the poromboke land to

an extent of more than 25 cents. On 03.04.2003 the father of the plaintiff

died intestate. Even after purchase by the 1st defendant trust, the plaintiff's

father and plaintiff used the pathway from main road to the suit properties.

While so, the defendants 1 & 2 blocked the said pathway by way of putting

a pucca gate on the western and southern side of the plaintiff's property

leaving no access to reach the main road or any other road. As such there is

no road available in the northern side of the suit properties. The only

possible access for the plaintiffs is to go through the suit 'C' schedule

property. Hence, the plaintiffs were constrained to file the above suit for the

following reliefs:

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i. To declare that the suit 'C' schedule property, described as ''A B C D

E F'' in the suit plan is a pubic road and consequential relief of mandatory

injunction directing the 3rd defendant to remove the encroachments and

obstructions in the road within a stipulated time failing which, it may be

done through the process of court.

ii. And for declaring the possessory right of the plaintiffs over the suit

'B' schedule property and for mandatory injunction directing the 4th

defendant to issue patta in favour of the plaintiffs for 'B' schedule property.

3.The respondent resisted the claim of the plaintiff in the written

statement under the following contentions:

The Defendants 1 and 2 specifically deny that the property described

in ABCDEF is a public road and it is equally false to state that there are

encroachments and obstruction in the road. Their contention is that the said

Chinnaraju owned 16 cents of property in Survey Number 80/8A and he

sold an extent of 9 cents to Mr. Balakrishnan under a registered sale deed

dated 20.12.1982. The said Balakrishnan and Chellapanki Ammal sold the

property to one Rajakannu under a registered sale deed dated 30.05.1984.

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He in turn sold the property to Neycer Educational Trust, Vadalur under a

registered sale deed dated 22.01.1997. The 'C' schedule property belonged

the Ist defendant trust. "C" schedule property is the pathway to the school.

To the east of the school building, another extent of 31 cents was purchased

by the defendant Trust from one Saminathan under a registered sale deed

dated 28.12.1995. On the southern side of the 'C' schedule property there is

a common pathway measuring east to west 150 feet north to south 15 feet.

The entire plan attached to the plaint is totally wrong. Even the directions

shown in the plan are also totally wrong. The Panruti to Tanjore road is

running from north to south. Whereas it is shown as west to east road. The

public cement road mentioned in plan originally belonged to the house

owners residing on both sides. They have gifted the property to Vadalur

Panchayat for laying a road. The Vadalur Panchayat has formed the Cement

Road and it is used by the school children and the residents living on both

sides of the road. Others have no access to the road since the road is

exclusively for the school children and the residents of the locality. The

property shown in ABCD is the absolute property of the defendants. There

is no need to block the road as alleged in the plaint. The plaintiffs have

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access to the B and 'A' schedule through eastern side which belonged to the

Government and not through the western side i.e. C schedule property. The

1st defendant is in possession of the Promboke land with the permission of

the Government as a leasee. The plaintiffs have not given the boundaries for

A, B and C schedule properties in the plaint and hence prayed to dismiss the

suit.

4.Based on the materials placed on record and the submissions made

by the respective counsel for the parties, the trial Court found that the

plaintiffs have right of access in the 'C' schedule property described as

A,B,C,D,E,F in the plaint plan and also directed the defendants 1 and 2 to

remove the encroachment within a period of 2 months in a way that the

plaintiffs have access to 'A' schedule property though C,A,B,D as described

in the plaint plan and decreed the suit partly and with regard to possessor's

right to the plaintiff's over the 'B' schedule property and the mandatory relief

directing the 4th defendant to issue patta in favour of the plaintiffs for B

schedule property, the trial Court has held that the plaintiffs are not entitled

for the above said relief. Aggrieved by this the plaintiffs filed an appeal in

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A.S.No.36 of 2016 before the II Additional Sub Court, Cuddalore and the

same was dismissed. Aggrieved over the judgment and decree passed by the

Courts below the present second appeal has been preferred by the

defendants 1 and 2.

5.The following substantial question of law is raised in the grounds of

second appeal:

a. Whether the Courts below are right in granting decree as prayed for when the plaintiff / 1st respondent has failed to plead and prove easement right to use the pathway in the appellants' property?

b. Whether the Courts below are right in moulding the large relief sought by the plaintiffs to declare the pathway as public road into a personal use of the road without any claim for Easement right over the pathway?

c. When the plaintiffs have not filed the Suit in representative capacity to seek relief for Public pathway without impleading the affected person, whether the Courts below are right in decreeing the suit by moulding the relief to personal interest of the plaintiffs from that of public interest?

d. When the Courts below having found that there is no pleading for Easement Right, whether the Courts

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below are right in granting the decree to the plaintiffs, have right of access in ''C '' Schedule property described as F,C,A,B,D,F in plaint plan?

e. When the plaintiffs failed to plead necessary ingredients for Easement of necessity, whether the Courts below are right in granting the relief?

f. When the plaintiffs have not provided proper description of the property which is claimed to be road through which they claim Easement Right, whether the Courts below is right in granting the relief?

g. Whether the Courts below are right in granting relief to the plaintiffs when the plaintiffs claim Easement right over the entire street of the land from the Highway without impleading other house owners on both sides of the pathway or examine them as witness as per Ruling reported in 2016 (1) MWN 488?

6.The learned counsel appearing for the appellants/defendants 1 and 2

submit that the property described as A,B,C,D, E & F in the plaint plan is

not a public road. The learned counsel would submit that one

Mr.Chinnaraju owned 16 cents of property in S.No.80/8A and he sold 9

cents of land to one Balakrishnan under registered sale deed dated

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20.12.1982. The said Balakrishnan sold the property to one Rajakannu

under a registered deed dated 30.05.1984 he in turn sold the property to

neither Educational Trust, Vadalur, under a registered sale deed dated

22.01.1997. The 'C' schedule property belonged to the 1st defendant trust

which is the pathway to the School to the east of the School building,

another extent of 31 cents was purchased one Swamynathan under a

registered sale deed dated 28.12.1995 on the southern side 'C' Schedule

property where there is a common pathway measuring east to west 150 ft

north to south 15 ft. Hence, the entire plan attached to the plaint is totally

false. Panruti to Tanjur road is running from North to South where as it is

shown in the plan as west to east road. The cement road mentioned in the

plan originally belongs to the house owners residing on both sides. They

have gifted the property to Vadalur panchayat for laying a road. The vadalur

panchayat has formed a cement road and it is used by the school children

and the residents living in either side of the road while others have no

access to the road since the road is exclusively for the school children and

the residence of the locality. The property shown as A,B,C,D in the plaint

plan absolutely belongs to the defendant and the documents filed on the side

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of the defendants will clearly prove the title of the defendant's school and

there is no need to block the road as alleged in the plaint. It is further

submitted that the plaintiffs have access to the 'A,B,C' schedule eastern side

which belongs to the Government and not through the western side i.e.,

through 'C' schedule property. The 1st defendant is in possession of the

poromboke land with the permission of the Government as a lessee.

7.The learned counsel further contended that there is no pathway to

'A' schedule property from southern side and that 'A' schedule property is

fully fenced with bamboo and that there is no pathway to the property. The

plaintiffs have not claimed for any easementary right in the plaint. The

Courts below having held that there is no pathway shown in the sale deed in

favour of the plaintiff under Ex.A.3, ought to have dismissed the case of the

plaintiff on the ground that the easementary right can be claimed only

against the properties of others. He would further contend that the Courts

below failed to note that the plaintiffs have not taken any pleading that they

have got access to their property in 'A' schedule through only 'C' schedule

property. The Advocate Commissioner in his report and plan has confirmed

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that there is no pathway available to the plaintiffs on the western side and

the pathway is available only on the eastern side. The Courts below erred in

granting a decree by moulding the relief without any pleading by stating

that the plaintiffs have right in 'C' schedule property. It is further submitted

that the existence of the pathway is not clearly described in Ex.A2 sale

deed. In fact, in Ex.A5 sale deed, the southern boundary mentioned and

there is no mentioning of pathway in 'C' schedule property and the same is

also not reflected in Ex.A.3 sale deed. The previous owners of 'C' schedule

property to an extent of 9 cents to Balakrishnan retaining 7 cents out of 16

cents and in the sale deed he had mentioned the southern boundary as

pathway allotted to him. He had not given any details of the pathway and its

extent. The learned counsel further submits that the entire extent of 48 cents

were sold by three brothers in which there is not even whisper about the

pathway. Further, except for 7 cents, all the property were purchased by the

plaintiff's father under Ex.A.3 and there is no pleadings in the plaint that

the pathway in 'C' schedule is the only access to the plaintiffs 'A' schedule

property. There is no pleadings for easement of necessity. Hence, the

plaintiffs have no right to claim any right over the alleged pathway in 'C'

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schedule.

8.Learned counsel further submitted that easementary of necessity

cannot be granted, when other means of access exist however inconvenient

it may be. Moreover, a person claiming easement should precisely plead the

property over which he claims easement right. In this case, the plaintiffs

have not done and therefore, the plaintiffs are not entitled to claim

easementary right. Further, contended that when necessary ingredient for

easement by necessity not pleaded and the pleadings are contrary to the

relief sought in the suit, the easementary right cannot be granted. In this

case, the plaintiffs have not pleaded as an alternative case that they are

entitled to easementary right over the 'C' schedule property. He would

further submit that a suit for declaration of title and possession relates to

the existence and establishment of natural rights which incurred by a

person by virtue of his ownership of a property. Whereas, the suit for

enforcement of easementary right relates to a right possessed by a dominant

owner / occupier over a property not his own, having the effect of

respecting the natural rights of the owner / occupier of such property.

Easement and title do not go together therefore, a suit for declaration of title

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cannot be converted into a suit for enforcement of easementry right. His

further contention is that it is fundamental that in a civil suit, relief to be

granted can be only with reference to the prayers made in the pleadings. In

the absence of a claim by plaintiff based on an easementry right, the

defendants did not have an opportunity to demonstrate that the plaintiff had

no easementry right, the Courts cannot convert a suit for title into a suit for

enforcement of an easementry right. Hence, prayed for setting aside the

judgment and decree passed by the Courts below. To support his contention

he has relied upon the judgments reported in :

1. 2009 (2) LW 485

2. 2020 (6) CTC 192

3. SA Nos. 42 & 43 of 1986

4. 2016 (1) MWN (Civil) 488

5. 2018 (4) CTC 359

9. On the other hand, the learned counsel appearing for the

respondents would submit that the plaintiff's and their predecessors are

entitled to have access to the 'A' schedule property only through the said

pathway which is described as E, C, A, B, D & F from Panruti main road in

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the eastern side. It is further submitted that in Ex.As.2 and A.16 documents

the existence of pathway on south of 'C' schedule property is mentioned.

However, in the sale deed of the 1st defendant who purchased the 'C'

schedule property under Ex.A.5, the southern boundary of the 'C' schedule

has been described as property owned by the 1st defendant and the east west

pathway was not mentioned. Therefore, when southern boundary of 'C'

schedule property is reflected to be a pathway in Exs.A2 and A.16, the 1 st

defendant placing his claim under Ex.A5 falsely contending that there is no

pathway in 'C' schedule property. The said contention of the 1st defendant

was rejected by the Courts below and rightly held that the plaintiffs are

having pathway right through the 'C' schedule property to reach their suit 'A

and B' schedule property which warrants for any interference by this Court.

10.Heard on both sides and records perused.

11.It is not in dispute that one Chinnaraju originally owned 'A' and 'C'

schedule property. It is also not in dispute that, the said Chinnaraju had sold

9 cents i.e., 'C' Schedule to one Balakrishnan under Ex.A2 retaining 7 cents

which is the 'A' schedule property. He then sold the above 7 cents to the

plaintiff's father Rajalingam under Ex.A3 after forming a common pathway.

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The 'A' schedule property was subsequently sold to one Rajakannu under

Ex.A.16 and the same was purchased by the 1st defendant under Ex.B.1. The

7 cents which is the 'A' schedule property was retained by Rajalingam and

after his demise the plaintiff are in possession and enjoyment of the 'A'

schedule property. The 'B' schedule pathway is a promboke Tharisu in

which the father of the plaintiff and his vendor had possessory right and the

plaintiff is now in possession of the 'B' schedule property. The property sold

out in favour of Balakrishnan was purchased by the 1st defendant Trust. The

property lying opposite to the said property was also purchased by the 1st

defendant Trust. Thereafter, the 1st defendant constructed a School in the

property purchased by it which is run by the 2nd defendant. The 'A' schedule

property is on the west of 'C' schedule property and the panruty Chennai

Highway is on the east of 'C' schedule property. The dispute between the

parties is only with respect to the claim made by the plaintiff about a

pathway in the 'C' schedule property to reach out by the plaintiff to the

Panruti main road from 'A' schedule property. According to the plaintiff,

there is no other access for him to reach 'A' schedule property from the

Panruti main road. The plaintiff has relied upon the Ex.A.2 sale deed in

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which the existence of pathway in which the 'C' schedule pathway is

mentioned. The above sale deed was executed by the original owner

Chinnaraju in favour of one Balakrishnan with respect to the 'C' schedule

property.

12.On perusal of Ex.A.2 sale deed executed by Chinnaraju in favour

of Balakrishnan in which the existence of pathway on the south of 'C'

schedule property running east west is shown. It is not in dispute the said

property was subsequently purchased by the 1st defendant's vendor namely

Rajakannu under Ex.A16 sale deed. Even in the above sale deed the

existence of the pathway on the south of 'C' schedule property is found. But

in the sale deed executed by the said Rajakannu in favour of the 1st

defendant under Ex.A5/Ex.B1 sale deed. The southern boundary 'C'

schedule has been described as the property owned by the 1st defendant and

the existence of the alleged pathway is not mentioned. Even in the sale deed

in favour of the plaintiff's father under Ex.A3 the existence of the pathway

on the southern side of the 'C' schedule property is not mentioned. The

southern boundary is described as the land belonging to one Swaminathan.

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It is not in dispute that the 'A and C' schedule property was a single piece of

land. There is no dispute that the three brothers were owning 16 cents and

allotted land for pathway to have access to their property and that is the

reason in Ex.A2 sale deed the southern boundary was mentioned as

'' vd;fF ghij;ffhf xJf;fg;gl;lepyj;jpw;f;Fk; tlf;F ''

13.Now, it has to be seen whether the pathway south of the 'C'

schedule property can be taken away by subsequent sale deed. The original

owner Chinnaraju was examined as P.W.4. He has categorically deposed in

his evidence about the existence of the suit pathway and about the

enjoyment of the said pathway by the plaintiff and his father. The vendor of

the 1st defendant namely Rajakannu was examined as D.W.2. His evidence

is extracted as under :

thjpfSf;F fpHf;nf nghtjw;F jw;nghJ tHpapy;iy/ thjp jw;nghJ cs;s R{y;epiyapy; btspna tUtjw;F ghij ,y;iy/ ahuhtJ tHp tpll; hy; jhd; thjpfs; btspna tuKoa[k; vd;why; rhpjhd;/ gs;sp eph;thfk; miHj;J thf;FK:yj;jpy; ifapl brhd;djhy; ehd; ifbaGj;J ,l;nld; vd;why; rhpjhd;/ gpuhkhz thf;FK:yj;jpy; cs;s thrffs; ehd; gof;ftpy;iy vd;why; rhpjhd;/

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14.Though, he had stated that the plaintiff do not have access on the

eastern side, the sale deed executed by him under Ex.A16 in favour of the 1 st

defendant reveals the existence of pathway on the southern side of 'C'

schedule property. As per Section 92 of the Indian Evidence Act, 1872,

D.W.2 cannot be permitted to adduce oral evidence contrary to documentary

evidence. Moreover, it is admitted fact that his is working as an employee in

the 2nd defendant's school and therefore, his evidence cannot be relied upon.

Therefore, the existence of pathway on the southern boundary of the 'C'

schedule property is established by the plaintiffs through Ex.A2 and A.16

sale deeds. The main contention of the appellant/ defendant is that out of

total extent of 16 cents, 9 cents were sold to the defendants and 7 cents were

sold to the father of the plaintiff and so, no area was left for pathway. But,

the plaintiffs claimed the pathway only in the 'C' schedule property

purchased by the defendants. The further contention of the defendant is that

, the perusal of the plaint shows that the entire case of the plaintiff was that

they have right over the suit pathway and that the same was blocked by the

defendants. Since the plaintiff failed to plead that they were entitled to an

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easementary right of pathway over the 'C' Schedule property, the Courts

below could not have converted a suit for title into a suit for enforcement of

easementary right. The concept ''easement of necessity'' or ''easement of

necessity by implied grant'' is entirely different from claiming right over the

property under a deed or as per easement by prescription. It is therefore, just

and necessary to refer to Section 13 as well Section 15 of the Indian

Easements Act, 1872.

''13.Easement of necessity and quasi easements:

Where one person transfers or bequeaths immovable property to another:

... 13. c.-- ''If an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transfer or testator, the transferor or the legal representative of the testator shall be entitled to such easement ''

15.Therefore, the right of easement over plaint 'C' schedule property

is under a deed as evident from Ex.A.2 and A16 sale deeds. Though, the

plaintiff or his father were not a party to the above sale deeds, when

Ex.A2 and A16 was executed by predecessor in title of 1 st defendant, the

1st defendant cannot just ignore the above documents. The existence of

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the pathway is contemplated under Exs.A2 and A16 sale deeds. Normally,

no one would venture to specify such a common pathway, had really it had

not been in existence at all. Apart from that, the evidence available on

record would establish the same. Hence, this Court has no hesitation to hold

that the plaintiff is entitled to the right of pathway over 'C' schedule

property. No perversity or infirmity found in the judgment and decree