2024:MHC:2183 IN THE HIGH COURT OF JUDICATURE AT MADRAS JUDGMENT RESERVED ON : 08 / 03 / 2024 JUDGMENT PRONOUNCED ON : 07 / 06 / 2024 CORAM:

THE HON'BLE MR.JUSTICE R.SAKTHIVEL S.A.NOS.2172 AND 2173 OF 2002 S.A.NO.2172 OF 2002 1..Viswanathan (Died)

2.Saraswathi

3.V.Illayaraja ... Appellants /

Appellants /

Defendant (App.1 died. App.2 and App.3 are B/R as LRs'of the deceased-App.1 vide Court order dated 23.02.2024 made in CMP Nos. 28992, 28994 and 29000 of 2023 in S.A.No.2172 of 2002)

Versus M.Sengotuvel ... Respondent /

Respondent /

Plaintiff PRAYER IN S.A.NO.2172 OF 2002: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 18.12.2001 made in A.S.No.183 of 2000 on the file of the III Additional District Judge, Salem, confirming the judgment and decree dated 25.07.2000 made in O.S.No.802 of 1994 on the file of the Additional Subordinate Court, Salem.

S.A.NO.2173 OF 2002 1.I.Viswanathan (Died)

2.Athayammal (Died)

3.Saraswathi

4.V.Illayaraja ... Appellants /

Appellants /

Plaintiffs 1& 3 (App.1 was recorded as LR of the deceased-App.2 vide order of Court dated 14.07.2006 made in CMP No.18664/2003)

(Thereafter, App.1 passed away. App.3 and App.4 are brought on record as LRs' of the deceased App.1 vide Court order dated 23.02.2024 made in CMP Nos. 29005, 29008 and 29004 of 2023 in S.A.No.2173 of 2002)

Versus

1.Maniyarar alias Muthu Gounder (Died)

2.Sengotuvel

3.Kanagaraj … Respondents 1 to 3/

Respondents 1 to 3/

Defendants 1 to 3

4.Perumayeeammal … 4^th Respondent /

th

4 Respondent /

2nd Plaintiff th

5. Malliga … 5 Respondent (R5 was B/R as L.R. of R1- Maniyarar alias Muthu Gounder vide Court Order dated 23.07.2019 made in CMP No.3382 of 2019 in SA No.2173 of 2002)

PRAYER IN S.A.NO.2173 OF 2002: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 18.12.2001 made in A.S.No.184 of 2000 on the file of the III Additional District Judge, Salem confirming the judgment and decree dated 25.07.2000 made in O.S.No.530 of 1992 on the file of the Additional Subordinate Court, Salem.

For Appellants : Mr.D.Shivakumaran For Respondents : Mr.S.Kalyanaraman (in both SA's)

COMMON JUDGMENT

Since the issues are interwoven and the parties are inter-related, Second Appeals in S.A.Nos. 2172 and 2173 of 2002 were heard together and will be governed by this common judgment. This common judgment, to add clarity and avoid ambiguity, is organized into four primary headings with corresponding subheadings as hereunder.

I. BACKGROUND II.SECOND APPEAL NO.2172 OF 2002 II(a) Plaintiff’s Case II(b) Defendant’s Case II(c) Decision of the Courts below II(d) Question of Law II(e) Arguments II(f) Discussion and Decision III.SECOND APPEAL NO.2173 OF 2002 III(a) Plaintiffs’ Case III(b) Defendants’ Case III(c) Decision of the Courts below III(d) Question of Law III(e) Arguments III(f) Discussion and Decision IV. CONCLUSION I. BACKGROUND

2) The relationship between the parties, is elucidated through the following genealogy chart.

Sengoda Gounder (Died in or about 1948)

Muthayammal (Died in or around 1968)

Elayappa Gounder Muthu Gounder (Died in or around 1974) (D-1)

Athayeeammal (P-3)

Viswanathan Perumayammal Sengottuvel Kanagaraj (P-1) (P-2) (D-2) (D-3)

Note:

•

P-1, P-2, P-3 - Plaintiffs in O.S.No.530 of 1992.

•

D-1, D-2, D-3 - Defendants in O.S.No.530 of 1992.

•

D-2 & P-1 - Plaintiff and Defendant respectively in O.S.No.802 of 1994.

3) Appellant herein – Viswanathan and respondent herein –

Sengotuvel are first cousins. On June 22, 1992, the respondent – Sengotuvel filed a suit in O.S.No.527 of 1992 on the file of the District Munsif Court, Salem against the appellant - Viswanathan, seeking the relief of permanent injunction restraining him from interfering with the peaceful enjoyment of the cart track connecting his land in Survey No.101 and ‘East-West Vazhapadi-Mangalam Road’ and from obliterating the same.

4) Thereafter, on July 14, 1992, appellant – Viswanathan along with his mother and sister, filed a Suit in O.S.No.530 o