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2025 Supreme(Online)(Mad) 65776
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. Govindarajan Thilakavadi, J
Kaliappan, Kunjammal – Appellant
Versus
Gurusamy – Respondent
Second Appeal No.1276 of 2019
For the Appellants/Petitioners: Mr.S. Shanmuga Sundaram
For the Respondent: Mr.S.A. Shanmugam
Judicial injunctions must be supported by clear identification of rights regarding property access, and ambiguity in demarcation leads to judicial caution.
Headnote:(A) Civil Procedure Code, 1908 - Section 100 - Second appeal against the grant of permanent injunction to the plaintiff regarding access to a common pathway - Courts below held the plaintiff has a right to the pathway based on sale deeds, directing demarcation of the southern boundary. (Paras 1-8)
(B) Permanent Injunction - Courts should not grant injunction without clear identification of the rights, especially if the passage is disputed and not properly measured. (Paras 7)
Facts of the case:
The plaintiff purchased a property with a claimed access through a common pathway, obstructed by the defendants. The trial court granted an injunction, upheld by the appellate court.
Findings of Court:
The courts below failed to identify the pathway properly and thus the injunction was set aside for lack of clarity.
Issues: Whether the courts erred in granting permanent injunction without clear identification of the pathway.
Ratio Decidendi: Courts should ensure the existence of rights before granting injunctions and the need for precise demarcation in disputed paths is emphasized.
Result: The Second Appeal was partly allowed, and the injunction was set aside.
| Table of Content |
|---|
| 1. claims of access to a common pathway. (Para 1 , 2) |
| 2. arguments on the adequacy of evidence for pathway usage. (Para 3 , 4 , 5) |
| 3. court's discussion on evidentiary clarity and pathway demarcation. (Para 7) |
| 4. final judgment on the necessity for clarity in property rights before injunction. (Para 8) |
JUDGMENT
The Second Appeal is at the instance of the defendants in O.S.No.515/2015. This suit has been filed by the plaintiff seeking the following reliefs:
i. That the defendants, their legal heirs, or their agents shall not in any manner obstruct or interfere with the plaintiff's peaceful enjoyment of the 'ABCD' common pathway — whether by constructing buildings, dumping stones, damaging the 'ABCD'
common pathway, or by any other means.
ii. It also seeks an order to appoint a Advocate Commissioner to fix the southern boundary of the plaintiff's property with the help of a surveyor.
2. The case of the plaintiff in brief is as follows:
2.1. The suit property was purchased by the plaintiff on 20.10.2011 under Ex.A2 from one Kuppusamy and the same is a vacant site. The plaintiff is using the same as Sheep pen from the date of purchase. According to the plaintiff there lies a 5 feet width pathway to the south of the suit property to reach the suit property from his ancestral property lying 50 feet away from the suit property on the southern side. The plaintiff has no other pathway to reach the suit property. The said pathway is shown as ABCD in the plaint plan. The defendants without any right whatsoever in the said pathway, attempting to prevent the plaintiff from using the pathway by encroaching and making arrangements to construct a building in the said pathway. Hence the suit.
2.2. The suit was resisted by the defendants contenting that the sale deeds in favour of the plaintiff do not mention where the pathway actually lies and therefore, the plaintiff is not entitled for the relief of permanent injunction unless the said pathway is properly identified by the plaintiff. Hence, prays for dismissal of the suit.
2.3. At trial, the plaintiff was examined as P.W.1 and four documents were marked on the side of the plaintiff. On the side of the defendants, no oral or documentary evidence were let in. Ex.C1 and Ex.C2 were marked as court documents.
2.4. The trial court, based on the materials on record, granted the relief of permanent injunction in favour of the plaintiff. However, the trial court directed the plaintiff to seek for an appointment of Advocate Commissioner and demarcate the southern boundary of the suit property. The findings of the trial court was upheld by the first appellate court by its judgment and decree dated 28.03.2019. Aggrieved by this, the present Second Appeal is preferred by the defendants in the suit.
3. The following substantial questions of law were raised in the memorandum of appeal.
i. Whether the courts below are perverse in granting permanent injunction in favour of the plaintiff with regard to the passage ABCD, when the passage ABCD itself was not identified by the courts below?
ii. Whether the courts below erred in law in allowing the prayer for appointment of commissioner to fix the southern boundary of the suit property after decreeing the suit for permanent injunction?
iii.Whether the findings of the courts below are perverse?
4. The learned counsel for the appellants/defendants submits that the courts below erred in granting the relief of permanent injunction with regard to the common passage 'ABCD' in favour of the plaintiff, when both the courts were not able to identify the common passage 'ABCD'. His further contention is that the trial court even after considering Ex.C1 and Ex.C2 which clearly states that there is a 10 feet mud pathway on the southern side of the plaintiff's property and to the south of the said pathway there is a common passage of 3 ½ feet shown as 'ABCD' and that a third party is claiming exclusive right over the said pathway, the trial court erred in rendering a finding th
