SA.No.710 of 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 02.11.2023

CORAM

THE HON'BLE Mr.JUSTICE C.KUMARAPPAN

S.A.No.710 of 2007

1. Aaravayee ammal

2. Thangammal

3. Jagathammal

4. Dhanam

5. Nagamuthu

6. Palanisamy

7. Devaki

8. Minor Sasikumar

S/o.Vadivel

9. Minor Karthic

S/o.Vadivel

10.Dhanabakkiam

11.Pappayee

12.Mallika

13.Minor Boopathi

14.Minor Deepika

15.Veeramani Selvam

16.Ponnammal

17.Lakshmi

18.Latha

19.Minor Karthic

S/o.Late.Murugesan

20.Minor Gowthami

... Appellants

- Vs -

1. S.Shanmugam

2. S.Sangapillai

3. M.Karuppannan @ Nannaran

1/11

https://www.mhc.tn.gov.in/judis

SA.No.710 of 2007

4. Kunnudaiyan

5. M.Sangapillai

6. Thiyagarajan

(No relief sought against respondents 4 to 6

in S.A and they are given up)

... Respondents

Second Appeal is filed under Section 100 of the Civil Procedure Code

against the judgment and decree dated 12.07.2004 made in A.S.No.395 of

2002 on the file of the Principal District Court, Namakkal reversing the

judgment and decree dated 06.02.1998 made in O.S.No.727 of 1996 on the

file of the Principal District Munsif, Namakkal.

For Appellants

: Mr.Dhanyakumar

For Respondents : Mr.S.Saravanakumar

for Mr.J.Senthil Raghavan for RR2 & 3

R4 to R6 – given up

R1-died.

*****

JUDGMENT

The appellants herein are the plaintiffs and they filed a suit for

permanent injunction based upon the easementary right by prescription.

2. For the sake of convenience, the parties will be referred according

to their litigative status before the Trial Court.

2/11

https://www.mhc.tn.gov.in/judis

SA.No.710 of 2007

3. The brief facts, which give rise to the instant second appeal is as

follows:-

(a) The suit property was purchased by one Veeramalai Muthuraja

under registered Sale Deed dated 30.07.1950 and he had four sons. Three of

the sons were dead and the plaintiffs 1 and 2 and 4 to 8 are the legal heirs of

the deceased sons. The surviving son of Veeramalai Muthuraja is the 3^rd

plaintiff in the suit. According to the plaintiffs, the Sale Deed dated

30.07.1950 specifically recites about the pathway for the schedule of

property. Therefore, they have perfected title by way easement by

prescription. Since the defendants have threatened their usage from

14.12.1996, they were constrained to file a suit for permanent injunction.

(b) The suit was resisted by the defendants with the contention that

there was no right as claimed by the plaintiffs. The defendants were very

much disputed the very existence of the passage. It is the further submission

of the defendants that the Sale deed dated 30.07.1950 will not bind upon

them, as they are not at all party to the said Sale Deed. Hence, prayed to

dismiss the suit.

4. Evidence and Documents:-

Before the Trial Court, the plaintiffs examined 2 witnesses as PW1

3/11

https://www.mhc.tn.gov.in/judis

SA.No.710 of 2007

and PW2 and marked as many as 6 documents as Exs.A1 to A6. On behalf of

the defendants, 2 documents have been marked as Exs.B1 and B2 and one

witness has been examined as DW1. As a Court document, Exs.C1 and C2

have been marked.

5. After considering both oral and documentary evidence and having

considered the submissions made by either side, the Trial Court ultimately

decreed the suit. Aggrieved with the said finding, the defendants moved an

appeal, wherein, the First Appellate Court has found that the easementary

right has not been proved in the manner known to law and that the suit has

been filed beyond the period of two years from the date of the alleged

obstruction. Therefore, the First Appellate Court has ultimately allowed the

appeal and thereby, dismissed the suit. Aggrieved with the same, the

plaintiffs have approached this Court by way of this Second Appeal.

6. Submissions of either side counsel:-

(a). The learned Counsel for the plaintiffs would vehemently submit

that, by virtue of the sale deed-Ex.A1, their long usage and the prescriptiv