2023:MHC:5426 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2023 CORAM THE HON'BLE Mr.JUSTICE C.KUMARAPPAN S.A.No.625 of 2007 A.Koteeswaran ... Appellant - Vs -

M.H.Rafiunnisa ... Respondent PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 26.10.2006 made in A.S.No.17 of 2005 on the file of the Principal District Judge, Villupuram reversing the Judgment and Decree of the trial Court in O.S.No.421 of 2003 dated 24.01.2005 on the file of the Principal Subordinate Judge, Villupuram.

For Appellant : Mr.D.Vasanth for Mr.N.Suresh For Respondent : Mr.T.R.Rajagopalan, Sr.Counsel for M/s.T.R.Rajaraman

JUDGMENT

The appellant herein is the defendant and the respondent herein was the plaintiff before the trial Court.

2. For the sake of convenience, the parties will be referred to according to their litigative status.

3. The brief facts which gives rise to the instant second appeal is that:

The defendant has purchased an extent of one acre 71 cents of land in S.F.No.78/1 and 78/2 by virtue of sale deed dated 16.04.1981. After purchase of the said property in order to form a layout, he executed a power of attorney in favour of one Lakshminarayanan by virtue of General Power of Attorney dated 16.04.1989. In pursuance thereof it appears that the power agent has formed a layout and had sold plot Nos.6 and 7 to the plaintiff. In the sale deed, it has been referred that the eastern boundary for the properties, is the north to south 24 feet road. Since the defendant obstructed the usage of the said passage, the plaintiff approached the Court for the relief of permanent injunction.

4. The said suit was resisted by the defendant by contending that the Power Agent Lakshminarayanan has not acted upon to the instruction of plaintiff and the power of attorney was subsequently cancelled and the entire property is in the possession of the defendant. It was further contended that the plaintiff cannot seek any easementary right as he has the direct access from the Villupuram - Pondy National Highway. Hence, prayed to dismiss the suit.

5. Evidence and documents:-

Before the trial Court, the plaintiff examined herself as PW1 and Exs.A1 to A8 have been marked on the side of the plaintiff. The defendant was examined as DW1 and no document was marked on the side of the defendant.

6. Finding of the both the Court below:-

Considering the submission made by both sides and considering the oral and documentary evidence, the trial Court dismissed the suit. Challenging the same, the plaintiff approached the First Appellate Court, and the First Appellate Court reversed the findings and decreed the suit. Aggrieved with the same, the defendant is before this Court, by way of the Second Appeal.

7. The second appeal was admitted on the following substantial questions of law:

''1. Whether the Court below is right in reversing the well considered judgment of the trial Court when admittedly the plaintiff has not pleaded any easementary right in respect of the 24 feet path-

way?

2. Whether in law the Court below is right in decreeing the suit in favour of the plaintiff when admittedly the plaintiff has not been conferred with any right under Ex.A1 in respect of the 24 feet path-

way, the subject matter of the suit?

3.Whether in law the Court below is right in reversing the finding of the trial Court, when admittedly the plaintiff has got an alternative way to have access to his property by the National Highways abutting his property?''

8. Submissions of either side counsel:-

The learned counsel for the appellant/defendant would submit that the Court below ought to have seen that no right had been conferred on the plaintiff in the sale deed Ex.A1. It is further submitted by the learned counsel for the appellant that 24 feet road has not been vested with the Government and the plaintiff has got direct access from Villupuram – Pondy highway and therefore, he cannot claim any right of easement on the eastern side North-south