BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 27.03.2024 Pronounced on : 22.05.2024 CORAM:

THE HONOURABLE MRS.JUSTICE S.SRIMATHY S.A.(MD).No.151 of 2024 and C.M.P.(MD)No.3523 of 2024

1.The Block Development Officer, Madhukkur, Having Office at Panchayat Union, Madhukkur, Pattukkottai Taluk and Munsif, Thanjavur District.

2.State of Tamil Nadu, represented by its District Collector, Thanjavur, Having Office at Collectorate, Trichy Road, Thanjavur Town and Munsif. ... Appellants Vs.

Veerasamy ... Respondent P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 17.10.2022 in A.S.No.26 of 2018 on the file of the III Additional District Judge, Pattukkottai, modifying the judgment and decree dated 27.11.2017 made in O.S.No.26 of 2010 on the file of Subordinate Court, Pattukkottai.

For Appellants : Mr.S.Jeya Priya Government Advocate For Respondent : Mr.A.Senthil Kumar *****

JUDGMENT

The present second appeal is filed against the concurrent judgments passed by Trial Court and First Appellate Court.

2.The plaintiff in the suit is the respondent here in and the defendant in the suit are the appellants herein. For the sake of convenience the parties are referred as per the ranking in the suit.

3.The plaintiff had filed the suit for declaration in respect of “A” schedule property and mandatory injunction to remove the encroachment and for permanent injunction, restraining the defendant not to lay tar road in plaintiff property. After considering the plaint, written statement, documentary evidence and depositions the Courts below had allowed the suit. Aggrieved over the same the defendants in the suit had preferred this present second appeal.

4.The brief facts as stated by the plaintiff is that the schedule property originally belong to the plaintiff’s grandfather, namely Veeraswamy. The said Veeraswamyhad three sons, including the plaintiff’s father namely,AthiyappaKalingarayar. There was a partition deed executed by them on 07.02.1947 which was registered as Document No.518 of 1947. In the said partition deed “A” schedule property was allotted to the plaintiff’s father. After his demise, the plaintiff being the sole legal heir had become the absolute owner of the “A” schedule property. The “B” schedule property is the pathway passing through parts of lands in R.S.No.123A/16, 123A/13, 123A/14B/2 as described in the plaint “A” schedule property. The “C” schedule is another small portion of the property in which a road has been formed unauthorisedly. The “B” schedule property lies in between Panchayat Road on the southern side and patta land of the plaintiff.

5.The contention of the defendants are that 50 years ago, the plaintiff’s father had granted oral consent for laying road in the “C” schedule property. Based on the oral consent,the villagers are using the road as their pathway. Moreover, the road was expanded under NamakkuNaame scheme. Therefore, the plaintiff cannot pray for removing the said road. Further, the defendant submitted that the plaintiff had accepted and signed the resolution passed by the village to lay road in the schedule of properties. Therefore, the plaintiff cannot go against the said acceptance and the resolution of the village. Since the road is in usage for the past 50 years, the plaintiff has lost his right over the said land. Therefore, the defendant prayed to allow the second appeal and dismiss the suit.

6.After scrutinising the plaint, written statement and the evidences put forth by the parties, the Trial Court has allowed the suit declaring that the land belongs to the plaintiff and also granted injunction against the defendants. Aggrieved over the same,the defendants had preferred first appeal and the same was dismissed, confirming the judgment of the Trial Court. Aggrieved over the same, the present second appeal is preferred.

7.The defendants raised the following Substantial Questions of Law: “1. When the subject suit properties admittedly a