S.A.No.2167 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On

08.09.2022

Pronounced On

20.10.2022

CORAM

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY

S.A.No.2167 of 2002

Sengodam

...Appellant

Vs.

1.O.V.Muthuramalingam

2.O.M.Rajagopal

3.O.M.Balakrishnan

4.R.Venkateswaran

...Respondents

PRAYER : Second Appeal filed Under Section 100 of the Code of Civil

Procedure against the Judgment and Decree dated 05.04.2002 made in

A.S.No.2 of 2002 on the file of the Additional District Court No.IV / Fast

Track Court No.IV, Bhavani, confirming the Judgment and Decree dated

24.10.2000 made in O.S.No.698 of 1995 on the file of the Principal District

Munsif Court Bhavani.

For Appellant

:

Mr.N.Manokaran

For R1, R2 & R4

:

No Appearance

For R3

:

Mr.V.Anandhamurthy

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S.A.No.2167 of 2022

JUDGEMENT

This Second Appeal is preferred as against the Judgment and Decree

dated 05.04.2002 made in A.S.No.2 of 2002 on the file of the Additional

District Court No.IV / Fast Track Court No.IV, Bhavani, confirming the

Judgment and Decree dated 24.10.2000 made in O.S.No.698 of 1995 on the

file of the Principal District Munsif Court Bhavani.

2.The appellant herein is the plaintiff and the respondents herein are

the defendants in the suit.

3.For the sake of convenience, the parties are referred to as per their

ranking before the trial Court.

4.The case of the plaintiff is that the plaintiff purchased the vacant

house site in R.S.No.351/2 with specific boundaries on 01.11.1982 from one

Kuppusamy. The plaintiff's predecessors in title have been using the suit car-

track from south to north as an access. The plaintiff filed a sketch showing

the topography of the land, wherein he has marked the suit cart-track as

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S.A.No.2167 of 2022

A,B,C,D. The plaintiff had claimed that he has been using the cart- track as

ingress and egress from Bhavani to Komarayanoor main road. The plaintiff

constructed a titled houses in the vacant site purchased in R.S.No.351/2 in

the year 1993 and he has been paying house tax to the panchayat. The

defendants are the owners of the land in R.S.No.347/2 which situates

eastern side of plaintiff's land. The further case of the plaintiff is that the suit

cart-track is being enjoyed by him as easementry right by long user

prescription and necessity. Further, he claims that there is no other way to

reach his house and since the defendants are preventing the plaintiff from

using the cart-track, the plaintiff has filed the suit in O.S.No.698 of 1995 on

25.10.1995 for declaration and permanent injunction.

5.The case of the defendants is that the defendants 2 and 3 owns

ancestral properties in R.S.Nos.347 and 345 apart from other lands. As the

said lands are abutting the road, there is no necessity for a separate cart-

track to reach their lands till 1992. On 14.05.1992, the defendants 2 and 3

effected a registered partition of R.S.No.347 and other properties by which

the entire R.S.No.347/4 and a small extent of land in R.S.No.347/2 was

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S.A.No.2167 of 2022

allotted to the 3^rd defendant. The 2^nd defendant was allotted with the

remaining land in R.S.No.347/2 and R.S.No.345. Subsequently, a cart-track

to a width of 12 feet was laid in the eastern side of R.S.No.347/4 and a right

of way was given to the 2^nd defendant to access his lands since the lands

allotted to the 2^nd defendants were cut off from the road and that cart-track

has been claimed by the plaintiff and it was denied by the defendants since it

was not in existence prior to 1992. It is the further case of the defendants

that the plaintiff has an alternate way to reach his house and his vendors

also does not use the suit cart-track. Hence, the plaintiff has no legal right to

claim usage of the cart-track.

6.Before the Trial Court, on behalf of the plainti