[Cites 4, Cited by 0]
Madras High Court
M.Rajamanickan vs Maruthapandian on 21 January, 2026
S.A.(MD).No.392 of 201812.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 16.09.2025
Pronounced on : 21.01.2026
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
S.A.(MD)No.392 of 2018
and
C.M.P.(MD).No.11072 of 2018
M.Rajamanickan Appellant
Vs.
Maruthapandian Respondent
PRAYER:- Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 10.07.2018
in A.S.No.61 of 2017 on the file of the Additional District Judge,
Palani confirming the judgment and decree dated 28.09.2012 in
O.S.No.229 of 2006, on the file of District Munsif, Palani and allow
the appeal.
For Appellants :Ms.Al.Ganthimathi,
Senior counsel for
Mr.C.Mahadevan
For Respondents :Mr.D.Venkatesh
1/16
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S.A.(MD).No.392 of 201812.
JUDGMENT
The unsuccessful defendant in O.S.No.229 of 2006 on the file
of the District Munsif Court, Palani, has preferred this Second
Appeal challenging the decree passed in O.S. No.229 of 2006 and
confirmed in A.S. No.61 of 2017 dated 10.07.2018 on the file of the
Additional District Judge, Palani.
2.The respondent/plaintiff filed the suit seeking declaration
of the suit schedule pathway as an easement by prescription and
for consequential permanent injunction restraining the
appellant/defendant from interfering with his use of the said
pathway. It is averred in the plaint that the plaintiff is the owner of
the property situated in S.No.322/1 and that the suit schedule
pathway runs through various lands in S.Nos.332/2 and 323/2.
The plaintiff pleaded that the pathway has been in existence from
time immemorial and was continuously enjoyed by him, his
father, and his ancestors openly, peacefully, and as of right. While
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S.A.(MD).No.392 of 201812.
so, the defendant purchased a portion of land in S.No.323/3 from
one of the co-sharers and attempted to interfere with the plaintiff’s
enjoyment of the pathway.
3.Earlier, the plaintiff had filed O.S. No.229 of 2006 seeking
bare injunction. During the pendency of that suit, an Advocate
Commissioner was appointed. On receipt of the Commissioner’s
report, the defendant did not object for the enjoyment of the
pathway, and consequently, the plaintiff did not pursue the suit,
which came to be dismissed for default. Subsequently, in the year
2006, the defendant again caused obstruction to the plaintiff’s use
of the pathway, compelling the plaintiff to file the present suit
seeking declaration of easement by prescription and consequential
injunction.
4.The defendant filed a written statement denying the
existence of any pathway as pleaded by the plaintiff and
contended that the plaintiff had no right whatsoever to use the
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S.A.(MD).No.392 of 201812.
alleged pathway. It was further contended that the suit was barred
under Order IX Rule 9 CPC, as the earlier suit was dismissed for
default without obtaining leave of the Court. The defendant also
raised a counter-claim, namely, mandatory injunction to issue a
direction to the plaintiff to construct the concrete pillor and install
the iron gate on the southern side of the road and permenant
injunction from respondent for using the said pathway directing
removal of the same.
5.Based on the pleadings, the learned trial Judge framed
necessary issues. On the side of the plaintiff, he examined himself
as P.W.1 and examined P.Ws.2 and 3 to substantiate his claim of
easement by prescription. He marked Exs.A1 to A9. On the side of
the defendant, D.W.1 was examined and Exs.B1 to B10 were
marked. The Advocate Commissioner’s report and plan were
marked as Court documents Exs.C1 to C3.
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S.A.(MD).No.392 of 201812.
6.Upon consideration of the oral and documentary evidence,
the learned trial Judge decreed the suit as prayed for and
dismissed the counter-claim. Aggrieved by the same, the
defendant preferred A.S. No.61 of 2017, which was dismissed by
the learned Additional District Judge, Palani, confirming the
findings of the trial Court. Challenging the concurrent findings of
both the Courts below, the present Second Appeal has been filed.
7.On the date of admission (29.11.2018), this Second Appeal
has been admitted on the following Substantial Questions of Law:
1.Whether the Courts below erred in not considering
the fact that already a suit has been filed by the plaintiff's
father in 1998 and thereafter, the same has not been
proceeded with and the present suit is not maintainable?
2.Whether the Courts below erred in granting a
decree for easement by prescription without considering the
provisions of law which has not been followed?
3.Whether the Appellate Court erred in confirming
the decree without any application of mind?
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S.A.(MD).No.392 of 201812.
8.Tmt. AL. Gandhimathi, learned Senior Counsel appearing
for the appellant, submitted that the documents relied upon by the
plaintiff do not contain any recital regarding the alleged
easementary right and that the Courts below committed a grave
error in granting the decree based on such documents. It was
contended that easement by prescription must be strictly proved
and that the plaintiff failed to establish continuous, open, and
uninterrupted enjoyment for the statutory period. In the absence
of any reference to the pathway in the earliest title documents, the
findings of the Courts below are perverse and contrary to the
evidence on record, warranting interference by this Court.
9.Per contra, the learned counsel for the respondent/plaintiff
submitted that the plaintiff relied upon documents dated
09.12.1985 (Ex.A3), 02.01.1986 (Ex.A4), 07.02.1990 (Ex.A5), and
12.12.1985 (Ex.A9), which clearly establish the existence and
enjoyment of the pathway. It was further contended that P.W.1
and P.W.3 have categorically spoken about the continuous and
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S.A.(MD).No.392 of 201812.
uninterrupted use of the pathway by the plaintiff and his
predecessors who had the title. Both the Courts below, on proper
appreciation of oral and documentary evidence, have concurrently
found the claim in favour of the plaintiff. There is no perversity or
misreading of evidence warranting interference under Section 100
CPC.
10.This Court considered the rival submissions made by the
learned counsel appearing for the appellant and the learned
counsel appearing for the respondent and perused the materials
available on record.
11. The respondent is the plaintiff in O.S.No.229 of 2006 and
his land is situated in Survey No.323/1 and to reach the said land
from Dindigul – Palani Main road, there is a pathway mentioned
as suit scheduled property running through the Survey No.323/2,
322/3. The appellant lands are situated abutting the main road
and the plaintiff's land situated on the northern side of the
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S.A.(MD).No.392 of 201812.
defendant's land, namely, the appellant's land. The said suit
pathway running south to north and connecting the Dindigul –
Palani Main road. The defendant attempted to block the said
pathway in the year 1998 and hence, the plaintiff's father has filed
the suit for bare injunction restraining the appellant from
interfereing with the usage of the said pathway. Therefore, he filed
suit in O.S.No.244 of 1998 and the appellant had not obstructed
him from using the said pathway. Therefore, the said suit was
allowed to be dismissed for default on 19.03.2003. The plaintiff's
father executed the settlement deed on 20.03.2006, in favour of the
plaintiff. Subsequently, in the year 2006, the appellant again has
caused obstruction to the enjoyment of suit pathway. Therefore,
he filed the suit for declaration of his right of easement by
prescription and consequential permanent injunction in the
present suit in O.S.No.229 of 2006. For better appreciation of the
facts the suit pathway which was mentioned in the earlier
Advocate Commissioner’s report is extracted hereunder:
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S.A.(MD).No.392 of 201812.
12.From the above, it is clear that the only pathway existed
to reach the plaintiff's land is the suit scheduled pathway. The
Pathway is Jugular vein of the land and if the said vein was cut
down, the life of the enjoyment of the land would meet its end. To
prove the existence of the pathway and right of easement by
prescription the plaintiff had filed documents Ex.A2, Ex.A3 dated
09.12.1985, Ex.A4 dated 02.01.1986, Ex.A5 dated 07.02.1990 and
Ex.A9 dated 12.12.1985. In all documents there is clear mentioning
of suit pathway. The material contents of the documents Ex.A3
and Ex.A5 is as follows:
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S.A.(MD).No.392 of 201812.
Ex.A3 Ex.A5
...godp jpz;Lf;fy; Nuhl;bypUe;J ...godp jpz;Lf;fy; Nuhl;bypUe;J tlf;Nf
eh.uhkrhkpf; fTz;lh; tifahh; NghFk; njd;tly; tz;bg;ghijAk;
epyq;fSf;Fg;NghFk; tz;bg;ghij... Nkw;gb uhkrhkpf;fTz;lh; nkhl;ilag;gd;
vd;w godpr;rhkpf;fTz;lh; epyKk;
njw;F...
13.The vendor of the properties of the plaintiff were
examined as P.W.3. P.W.3 and their ancestors are the owner of the
common properties including the suit scheduled pathway. The
plaintiff purchased from one line of the ancestors and the
defendant's vendor purchased from the other line of the ancestors.
The Existence of the pathway and usage of the pather was clearly
spoken by the plaintiff's vendor P.W.3. He is aged about 73 years
and he was subjected to lengthy cross examination, and nothing
was elicited to disbelieve his evidence. The defendants D.W.1 also
admitted the above facts and relevant portion of the evidence is as
follows:
...tof;fpw;F gpd;dpl;L jhd; th.rh.M.3
fpiuag;gj;jpuj;ij ehd; gz;L vOjg;gl;lJ vdf;F
njhpAk;. th.rh.M.3y; fz;l nrhj;ij fpiuak;
ngw;wtuhd tp.Mh;.Fg;Grhkp fTz;lh; vd;gthplkpUe;J
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S.A.(MD).No.392 of 201812.
jhd; vdf;F nrhj;ij tpw;gid nra;j
Kd;ghj;jpa];jh;fs; fpiuak; ngw;whh;fs;. rh;Nt vz;.
322 f;F fPo;Gwk; cs;s epykhdJ Mjpapy;
Nfhjz;lghzp nrl;bahUf;F ghj;jpag;gl;L mth;
kNdhfud; vd;gtUf;F th.rh.M.4d;gb 02.01.1986k;
Njjpapy; fpiuak; nfhLj;Js;shh; vd;why; rhpjhd;.
Mjpy; njd;tly; tz;bg;ghijahf fz;Ls;snjd;why;
Nkw;gb tptuk; jhthTf;F gpd;jhd; njhpAk;. ehd;
fpiuak; ngWk; NghJ fpiuag;gj;jpuj;ij ehd; gbj;Jg;
ghh;f;ftpy;iy. vd; fzf;Fg;gps;is gbj;J ghh;j;jhh;.
th.rh.M.5-d; gb tp.Mh;.Fg;GrhkpfTz;lh; vd;
Kd;ghj;jpa];juhd tp.rpfTz;lh; vd;gtUf;F
07.02.1990k; Njjp tpw;gid nra;jhh; vd;why; rhpjhd;.
MjpYk; godp jpz;Lf;fy; ghijapypUe;J tlf;Nf
nry;Yk; tz;bg;ghij vd Fwpg;gpl;Ls;shh; vd;why;
rhpjhd;. vd; Kd;gj;jpuq;fs; vijANk gbj;Jg;
ghh;f;fhky; jhd; fpiuak; ngw;Nwd;...
14.Therefore, both the Courts below upon proper
appreciation of the above documents and evidence, have
categorically held that there is existence of the pathway and the
plaintiffs had established their right of prescription over the
pathway to enjoy the same. The Hon'ble Supreme Court, in the
case of Hero Vinoth (Minor) vs. Seshammal reported in 2006 (5)
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S.A.(MD).No.392 of 201812.
SCC 545 has held as follows:
29.An easement by grant does not get extinguished
under Section 41 of the Act which relates to an easement
of necessity. An easement of necessity is one which is not
merely necessary for the reasonable enjoyment of the
dominant tenement, but one where dominant tenement
cannot be used at all without the easement. The burden of
the servient owner in such a case is not on the basis of any
concession or grant made by him for consideration or
otherwise, but it is by way of a legal obligation enabling
the dominant owner to use his land. It is limited to the
barest necessity however inconvenient it is irrespective of
the question whether a better access could be given by the
servient owner or not. When an alternate access becomes
available, the legal necessity of burdening the servient
owner ceases and the easement of necessity by implication
of law is legally withdrawnor estinguished as statutorily
recognized in Section 41. Such an easement will last only
as long as the absolute necessity exists. Such a legal
extinction cannot apply to an acquisition by grant and
section 41 is not applicable in such case”.
Even though the learned senior counsel vehemently submitted
that both the Courts below committed error in appreciating the
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S.A.(MD).No.392 of 201812.
documents and the oral evidence, this Court declines to accept the
same for the reason that both the Courts below properly
appreciated the oral and documentary evidence and categorically
held that the plaintiff established his right of easement by
prescription. Therefore, this Court finds neither perversity nor any
error in the concurrent findings recorded by the Courts below
contrary to the evidence on record, warranting the interference by
this Court.
15. The learned Senior counsel submitted that suit is not
maintainable on the ground that the earlier suit was dismissed for
default and without obtaining the permission under Order 9 Rule
9 C.P.C, the present is filed.
16.The learned counsel for the respondent submitted that the
earlier suit was only for injunction and the same was also allowed
for non prosecution only on the ground that there was no
disturbance, subsequent to the filing of the Commission report
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S.A.(MD).No.392 of 201812.
disclosing the above suit pathway.
17.In view of the above said circumstances, the court finds
that subsequent relief is for declaration and injunction with
different cause of action, that is, the defendants also again
attempted to obstruct the usage of pathway only in the year 2006.
There is a specific pleading in the paragraph No.5 of the plaint
relating to the subsequent cause of action. Hence, both Courts also
considered the same. This court also finds no reason to differ with
the finding of both the courts under Order 9 Rule 9 of C.P.C., with
the relief of declaration and injunction for a different cause of
action.
18.In view of that the question of law framed by this Court
at the time of admission is answered against the appellant.
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S.A.(MD).No.392 of 201812.
19.In result, this Second Appeal stands dismissed. There
shall be no order as to costs. Consequently, connected Civil
Miscellaneous Petition stands closed.
21.01.2026
NCC :Yes/No
Index : Yes/No
Internet : Yes/No
sbn
To
1.The District Munsif Court,
Palani.
2.The Additional District Court,
Palani.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD).No.392 of 201812.
K.K.RAMAKRISHNAN, J.
sbn
and
21.01.2026
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