IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26 / 04 / 2022

CORAM

THE HON'BLE MR.JUSTICE M.GOVINDARAJ

SA NO.452 OF 2017

AND CMP NOS.11236 TO 11238 OF 2017

1.K.A.Gothavariammal (Died)

2.C.A.Dhanalakshmi Ammal

3.K.A.Pankaja Parameswari

4.K.A.Padmavathy

5.K.P.Radha Rukmini

(Appellants 2 to 5 brought on record as

LRs' of the deceased sole appellant

vide K.A.Gothavariammal vide

Court order dated 24.11.2021 made in

CMP Nos.18125, 18130 and 18132/2019

in SA No.452 of 2017)

...Appellant/Respondent/Plaintiff

VS.

1.Ariya Gounder

2.Palaniammal

3.Thangamuthu

4.Velayutham

...Respondents 1 to 4/

Appellants 1 to 3/Defendant 1 to 4/

2^nd Respondent

PRAYER: Second Appeal filed under Section 100 of the Civil

Procedure Code, 1908, against the judgment and decree dated

29.11.2011 in A.S.No.64 of 2009 on the file of the learned

Subordinate Judge, Gobichettypalayam, reversing the judgment and

decree dated 24.08.2006 of the Trial Court in O.S.NO.151 of 2004

on the file of the learned District Munsif, Gobichettypalayam,

granting the relief of permanent injunction in favour of the

appellant and dismissing the claim for mandatory injunction of

the respondents.

For Appellants :

Ms.Puran Khemka

For Respondents :

Mr.A.V.Arun

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J U D G M E N T

Aggrieved over the reversal of the judgment and

decree passed by the Trial Court, by the First Appellate Court,

the appellant has preferred the above Second Appeal.

2.For the sake of convenience, the parties are

called as per their ranking in the Suit. During the pendency of

the Second Appeal, the sole appellant/plaintiff died and her

legal representatives are brought on record.

3.According to the plaintiff, the plaintiff has

derived title to the suit property through the WILL executed by

her husband on 27.12.1964. The new survey number of the property

is S.F.2 and later sub-divided as S.F.Nos.2/1, 2/2, 2/3 and 2/4.

The plaintiff sold four acres of land in S.No.2/1 in favour of

the defendants by virtue of two registered sale deeds dated

10.02.1982. Even before that, she sold four acres of land in

S.Nos.2/3 and 2/4 in favour of one Sennimalai Gounder. The

defendants and the said Sennimalai Gounder were using the Cart

Track lying between their properties and enjoying the same

without any issues. The Cart Track shown on the west of point

“H” in the plan annexed to the plaint extensively belongs to the

plaintiff and the defendants do not have any right over the Cart

Track from the point “H”. On 03.03.2004, the plaintiff filed an

application for survey to determine the boundaries. After

issuing notice, the Surveyor measured the properties and erected

stone pillars and put wire fence on the boundaries, which was

marked as ABCD in the plan annexed to the plaint. The plaintiff

had fenced the boundaries with barbed wire and stone pillars. On

26.03.2004, the defendants have threatened to damage the stones

and remove the barbed wire fence on the ill-advice of the

enemies of the plaintiff. Hence, she filed a Suit for permanent

injunction restraining the defendants form damaging or removing

the fence from her land.

4.Denying the claim of the plaintiff, the

defendants would state that by virtue of the sale deed dated

10.02.1982, the plaintiff has granted easementary right in

respect of the Cart Track belonging to her on the western side

of their property to a width of 24 links running south north

track of the plaintiff. In violation of the grant, the fence has

been put up by the plaintiff. The plaintiff is estopped from

denying the easementary right of the defendants by grant.

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5.The Trial Court appointed an Advocate

Commissioner to find out the physical features and the Advocate

Commissioner in his report would state that there exist a 15

feet width of lan