S.A.No.489 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 19.07.2023

Coram :

THE HONOURABLE MR. JUSTICE A.D. JAGADISH CHANDIRA

Second Appeal No. 489 of 2023

Elamathi

.. Appellant

Versus

1.State of Tamil Nadu,

Rep., by its District Collector,

Ariyalur.

2.The Revenue Divisional Officer,

Udayarpalayam,

Ariyalur District.

3.The Tahsildar,

Tahsildar Office,

Jayankondam, Ariyalur District.

4.The Commissioner,

T.Pallur, Udayarpalayam,

Ariyalur District.

5.Pushpavalli

6.Sengutuvan

7.Poiyamozhi

.. Respondents

Second Appeal filed under Section 100 C.P.C., against the

judgment and decree dated 20.11.2018 made in A.S. No.99 of 2017 on the

file of Subordinate Court, Jayankondam, Ariyalur District, confirming the

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S.A.No.489 of 2023

judgment and decree dated 23.01.2017 made in O.S.No.342 of 2010 on the

file of District Munsif Court, Jayankondam, Ariyalur District.

For Appellant

: Mr.S.Sarath Chandran

For Respondents

: Dr. S. Suriya,

1 to 4

Additional Government Pleader

JUDGMENT

The unsuccessful plaintiff, who lost his case before the trial Court

as well as lower appellate Court, has filed the present second appeal.

2. For the sake of convenience, the parties are referred to as they

are arrayed in the original suit.

3. The case of the appellant/plaintiff is as under:-

Defendants 5 to 7 are the owners of the suit property and the house

of the said defendants is situated in the suit property which is shown in the

plan. The plaintiff is having a property in S.No.386/10A and originally, the

said property belonged to one Arunachalam, who purchased the same on

24.07.1930. Later on, during partition, it was allotted to the plaintiff's father

and after his demise, property in Survey No.386/10A was allotted to the

plaintiff during partition between the plaintiff and his brother viz.,

Mathiyazhagan. To access the said Survey No.386/10A, there is a cart-

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S.A.No.489 of 2023

pathway about 8 feet width and 70 feet length in the suit property, which

belongs to defendants 5 to 7 in Survey No.386/8. The plaintiff and his

predecessors have been using the suit property as a cart pathway from

several years ago and now, the defendants are restraining the plaintiff from

using the said pathway. Hence, the plaintiff filed the suit claiming right

over the suit path-way by way of easement of necessity and for permanent

injunction.

4. The third defendant had filed the written statement denying all

the averments made in the plaint and contending as under:-

Defendants 5 and 6 had constructed the house in the suit property,

for which, the fourth defendant has granted permission. The plaintiff had

unnecessarily impleaded defendants 1 to 4 in the suit filed for easementary

right. If the plaintiff has been enjoying the suit property, there is no need

for defendants 1 to 4 to disturb him and seeking permanent injunction as

against defendants 1 to 4 is legally unsustainable and the suit has to be

dismissed with costs.

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S.A.No.489 of 2023

5. Defendants 1, 2 and 4 had adopted the written statement filed

by the third defendant.

6. Defendants 5 to 7 have filed a written statement contending as

under:-

6.1. The rough plan filed along with the plaint is incorrect and the

plaintiff has to prove that Survey No.386/10A belonged to him. Further,

Survey Number has not been mentioned in the sale deed dated 4.07.1930

which stands in the name of Arunachalam and in the plaint there is no

whisper as to which item relates to Survey No.386/10A and if it is true that

the suit property is used as a path-way or cart track, the same would have

found place in the sale deed itself and also in the partition deed dated

06.04.2010 entered into between the plaintiff and his brother, but there is no

whisper about the cart path-way. The portion which was allotted to the

plaint