Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Mad) 1913

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SAKTHIVEL, J.
G. Kamaraj – Appellant
Versus
K. Govindarajan – Respondent
S.A. No. 62 of 2019, C.M.P. No. 1288 of 2019, C.M.P. No. 18227 of 2024
Decided On : 12-12-2024

Advocates:
Advocate Appeared:
For the Appellant : P.T. Rakesh
For the Respondent: K. Balaji

The court affirmed that plaintiffs possess easementary rights over a common Cart Track, while the defendants' claims of absolute ownership were unsupported by evidence.

Headnote:(A) Code of Civil Procedure, 1908 - Sections 100 and 151 - Second Appeal against the Judgment and Decree of the First Appellate Court confirming the Trial Court's dismissal of the plaintiffs' suit for permanent injunction regarding a common Cart Track - The plaintiffs established their easementary rights over the Suit Cart Track, which the defendants obstructed - The First Appellate Court's findings were upheld, clarifying that the plaintiffs have only easementary rights and no title over the soil. (Paras 21, 24, 25)

(B) Easementary Rights - The court ruled that the plaintiffs have a right to use the common Cart Track for access to their properties, despite the defendants' claims of exclusive ownership. (Paras 21, 24)

JUDGMENT :

R. SAKTHIVEL, J.

Prayer in S.A. No. 62 of 2019: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated December 14, 2017, made in A.S. No. 4 of 2017 on the file of the Sub Court, Rasipuram, setting aside the Judgment and Decree dated January 19, 2017 made in O.S. No. 78 of 2014 on the file of the District Munsif Court, Rasipuram.

Prayer in CMP No. 1288 of 2019: Civil Miscellaneous Petition filed under Section 151 of Code of Civil Procedure, 1908 praying to grant an Order of stay of the Judgment and Decree dated December 14, 2017 made in A.S. No. 4 of 2017 in O.S. No. 78 of 2014 on the file of the Sub Court, Rasipuram.

Prayer in CMP No. 18227 of 2024 : Civil Miscellaneous Petition filed under Order XLI Rule 27 of Code of Civil Procedure, 1908 praying to receive the document viz. ‘Pathway Agreement dated July 25, 2020 registered before Sub Registrar, Rasipuram as Document No. 2965 of 2020’ in this appeal as additional evidence.

1. This Second Appeal is directed against the Judgment and Decree dated December 14, 2017 passed in A.S. No. 4 of 2017 by the ‘Sub Court Rasipuram’ [henceforth ‘First Appellate Court’ for brevity] whereby the Judgment and Decree dated January 19, 2017 passed in O.S. No. 78 of 2014 by the ‘District Munsif Court, Rasipuram’ [henceforth ‘Trial Court’ for brevity] was confirmed.

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

FACTUAL MATRIX

3. Pazhamalai alias Sellamuthu Udayar had five sons, namely Karuppa Udayar [father of first plaintiff], Nallathambi Udayar, Kandhasamy Udayar, Ramasamy Udayar [grandfather of fourth and fifth plaintiffs], and Ganesa Udayar [father of first and fourth defendant]. The second plaintiff is the wife of the first plaintiff. The second and third defendants are the children of the first defendant. The fourth defendant is the sister of the first defendant.

3.1. The total extent of Survey No. 318 is 8 Acres 85 Cents. An extent of 1 Acre 70 Cents in Survey No. 318/2 and half-a-share in the common well in Survey No. 318/3 along with some more properties initially belonged to Pazhamalai alias Sellamuthu Udayar as joint family properties. He along with his five sons divided these properties vide Partition Deed dated December 16, 1950, whereby the said extent of 1 Acre 70 Cents in Survey No. 318/2 along with the said half-a-share in the common well in Survey No. 318/3 was allotted to Ganesa Udayar.

3.2. One Kali Asari and his family members owned nearly 2 Acre 12 Cents in Survey No. 318. There is no whisper about the title and ownership of the remaining extent therein.

3.3. Said Kali Asari, his sons - Ramasamy & Rangasamy, and said Ramasamy’s wife - Angammal executed Ex-A.2 - Sale Deed dated June 23, 1967 in respect of 48 Cents in Survey No. 318/4 and 16½ Cents in Survey No. 318/6 along with 2/10th share in the common well in Survey No. 318/5 in favour of Kandhasamy Udayar and Ramasamy Udayar.

3.4. Then on April 30, 1968, Kali Asari, his another son - Angamuthu and Angamuthu’s wife - said Veeramal, executed Ex-A.1 - Sale Deed in respect of an extent of 48 Cents in Survey No. 318/4, 16½ Cents in Survey No. 318/6, and 2/10th share in the common well in Survey No. 318/5 in favour of Kandhasamy Udayar and Ramasamy Udayar.

3.5. Then, Kali Asari’s another son - Kuppusamy and Kuppusamy’s family members executed Ex-A.3 - Sale Deed dated January 20, 1970 in respect of eastern half of the total extent of 81 Cents in Survey No. 318/6 viz. 40½ Cents therein along with 1/10th share in the common well in Survey No. 318/5 in favour of Ramasamy Udayar.

3.6. On February 23, 1971, Ganesa Udayar executed a Sale Deed in respect of western half of the total extent of 81 Cents in Survey No. 318/6 viz. 40½ Cents therein in favour of Kandhasamy Udayar vide Ex-A.4 - registered Sale Deed, recitals whereof describe the properties covered thereunder as Ganesa Udayar’s self-acqui