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 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-

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.

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 plaintiff in the said partition was not stated in the partition deed. The plaintiff's brother Mathiyazhagan has not claimed any right over the pathway.

6.2. The plaintiff had never cultivated in the suit survey No.386/10A. The plaintiff and his predecessor had never enjoyed the suit property as pathway and the plaintiff a