Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Mad) 1484

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.B. BALAJI, J.
T.M. Thiruvenkatasamy - Appellant
Versus
M. Sundararajan - Respondent
A.S.Nos.131 of 2023 and 1124 of 2025 and CMP(MD).No.5208 of 2023
Decided On : 10-04-2026

Advocates Appeared:
For the Appellant : Mr. S. Ranjith Kumar.
For the Respondent: Mr. V.C. Janarthanan for Mr. Ma. Pa. Thangavel.

Easement of necessity granted over cart track lacking rightful alternative access despite poramboke use; house claim rejected for plaintiff's failure to prove construction or permissive possession, defendant perfecting adverse title by open possession over 12 years.

Headnote:(A) Indian Easements Act, 1882 - Sections 13 and 15 - Transfer of Property Act - Section 8 - Easement over cart track - Non-mention in partition deed does not preclude claim - No easement by grant or prescription proved due to lack of documentary evidence and continuous enjoyment for 20 years - Easement of necessity arises upon partition where share cannot be enjoyed without access through other's land and no rightful alternative via government poramboke exists despite historical use - Defendant's admission of passage and commissioner's report confirm track existence - Defendant to restore track. (Paras 15-19)

(B) Adverse Possession - Limitation - Suit for declaration, possession and damages over house - Plaintiff failed to prove construction at his cost or permissive occupation by defendant despite relationship - No documents like plans, accounts or contractor details produced - Inconsistent pleas on electricity and approvals - Defendant proved construction via planning permission, loan documents, housewarming ceremony attended by plaintiff, electricity connection and tax assessment - Open, continuous possession over 12 years perfects title - Boundaries prevail over extent in partition - No ouster proof needed as divided status, not co-owners. (Paras 20-32)

Facts of the case:
Brothers partitioned joint family lands in 1984; plaintiff allotted western portion accessible only via cart track through defendant's eastern land abutting public road - Plaintiff claimed easement over track obliterated in 2016 and permissive occupation of house built on his land - Defendant denied track existence, claimed use of government poramboke, his own construction of house with approvals and adverse possession - Trial court granted easement and injunction for track, rejected house reliefs - Cross-appeals dismissed.

Findings of Court:
Easement of necessity for cart track upheld; no reliefs for house declaration, possession or damages.

Issues: Whether cart track existed from partition, entitling plaintiff to declaration and injunction; whether house built by plaintiff with defendant in permissive possession or by defendant perfecting adverse title. (Points 19-20)

Ratio Decidendi: Easement by necessity under Section 13 where no legal alternative access despite poramboke use; plaintiff bears burden to prove track existence and house ownership/construction - permissive plea requires evidence, fails against defendant's documentary proof of possession and user - Acquiescence and delay bar claims; appellate court upholds trial findings absent perversity.

Result: Both appeals dismissed, trial decree confirmed.

Table of Content
1. partition allotted lands; plaintiff claims easement, permissive possession. (Para 1 , 2 , 3 , 4)
2. trial decreed a easement, rejected b reliefs; cross-appeals. (Para 5 , 6 , 7 , 8)
3. no easement grant/prescription; necessity despite alternative poramboke. (Para 9 , 10 , 11 , 12)
4. b house on plaintiff land; defendant permissive occupant. (Para 13)
5. framed points on track existence, house ownership. (Para 14 , 15)
6. easement of necessity over a track upheld. (Para 16 , 17 , 18 , 19)
7. no proof of plaintiff construction or permission for b. (Para 20 , 21 , 22 , 23 , 24)
8. adverse possession perfected; no co-owner ouster needed. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32)
9. appeals dismissed; trial decree affirmed. (Para 33)

COMMON JUDGMENT :

P.B. BALAJI, J.

1.A.S. No.131 of 2023 is at the instance of the defendant in O.S. No.20 of 2018 on the file of the III Additional District and Sessions Judge, Erode at Gopichettipalayam, challenging the Judgment and Decree granting a declaration in favour of the plaintiff to use the suit “A” schedule cart track and, consequently, a mandatory injunction directing the defendant to restore the said cart track.

A.S. No.1124 of 2025, on the other hand, is at the instance of the plaintiff in the very same suit, challenging the rejection of the reliefs of declaration, recovery of possession, and damages insofar as the “B” schedule property is concerned.

2. Pleadings in the plaint, in brief:

(i) The plaintiff and the defendant are brothers, the defendant being the elder brother of the plaintiff. The plaintiff, the defendant, their father T.K. Muthusamy Gounder, mother Vellammal, and another brother, who was the eldest, viz., T.M. Ayyasamy, divided their family properties under a registered partition deed dated 21.05.1984. Under the said partition deed, the plaintiff was allotted “D” schedule property and the defendant was allotted “C” schedule properties therein. The plaintiff and the defendant took possession of the respective schedule “C” and “D” properties under the said partition deed and were in enjoyment as absolute owners of their respective entitlements.

(ii) Under the said partition deed, the plaintiff was allotted an extent of 1.27.0 hectares on the western side, and the defendant was allotted an extent of 1.26.5 hectares on the eastern side, abutting the Vaikkal road. Even at the time of partition, an east-west cart track was provided, connecting the Vaikkal road on the east and the plaintiff's land on the west. The said cart track is described as “A” schedule property in the plaint schedule. However, the partition deed did not mention about the said cart track. Nevertheless, right from the date of the partition deed dated 21.05.1984 till June 2016, the plaintiff was using the said cart track openly, continuously and uninterruptedly, with the necessary animus and to knowledge of the defendant. The plaintiff thereby, has perfected his right to use the said cart track as an easement by prescription and grant. The said cart track is the only access to the plaintiff's land and therefore, it is an easement of necessity.

(iii) The plaintiff issued a lawyer's notice dated 18.12.2017 regarding his right to use the cart track. However, the defendant sent a lawyer’s notice on 12.01.2018 denying the claim of the plaintiff and stating that Government poramboke lands can be used by the plaintiff to reach his properties. The plaintiff contends that neither of the parties had ever used the Government lands as a cart track, and such a stand was taken in the reply notice only to deny the legitimate right of easement available to the plaintiff, through the defendant's property.

(iv) The plaintiff, being an M.Sc. graduate, joined in Union Bank of India as an Agricultural Finance Officer and, during his tenure, served in several places throughout India between 2002 and 2005. The plaintiff was employed in Mumbai, and in the year 2012, he intended to construct a house on the land allotted to him un