S.A.No.755 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.11.2023

CORAM

THE HONOURABLE MR. JUSTICE S.SOUNTHAR

S.A.No.755 of 2017

1.Jayapal

2.Karunakaran

3.Punitha

...Appellants

Vs.

Agila Ammal

...Respondent

PRAYER : Second Appeal filed under Section 100 of the Civil Procedure

Code, to set aside the judgment and decree dated 29.04.2017 passed in

A.S.No.31 of 2014 by the Sub-ordinate Judge, Dharmapuri confirming the

judgment and decree dated 24.02.2014 passed in O.S.No. 195 of 2002 by the

District Munsif, Dharmapuri.

For Appellants

: M/s.Arun Anbumani

For Respondent

: No appearance

J U D G M E N T

The unsuccessful defendants in the suit are the appellants. The

respondent herein filed a suit seeking declaration of easementary right over the

suit ABCD pathway and for consequential injunction restraining the appellants

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from interfering with her right of user over the ABCD pathway. The Trial Court

decreed the suit as prayed for and the first appeal filed by the appellants was

also dismissed. Aggrieved by the concurrent findings, the appellants have come

up before this Court by way of this second appeal.

2. It is the case of the respondent that the house property was settled in

her favour by one Chikkanna Gounder by settlement deed dated 08.08.1996

marked as Ex.A1. It is the specific case of the respondent that property was

settled together with easementary right of user over the ABCD pathway. It is

also averred by the respondent that the suit ABCD pathway has been used to

reach her house and the appellants herein attempted to interfere with her right

to use the said pathway. Hence, she was constrained to file a suit seeking

declaration of easementary right over the suit ABCD pathway and for

consequential injunction.

3. The appellants herein filed a written statement and denied the

easementary right claimed by the respondent. Further, the specific case of the

appellants is that neither the respondent nor her predecessor in title ever used

the suit property as an access to their property. It was also alleged that the

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S.A.No.755 of 2017

respondent has got an alternate poromboke pathway and the same had been

used as an access to her property for all these years. The appellants claimed

that suit pathway has been used by them exclusively and they have been in

possession and enjoyment of the same and consequently sought for dismissal

of the suit.

4. The Trial Court, on appreciation of oral and documentary evidence

available on record, came to the conclusion that the suit property has been used

as a pathway by the respondent for more than 20 years and consequently, the

respondent was entitled to the prayer sought for in the suit. Aggrieved by the

same, the appellants preferred first appeal in A.S.No.31 of 2014 on the file of

the learned Sub-Ordinate Judge, Dharmapuri. The First Appellate Court also

confirmed the findings of the Trial Court. Aggrieved by the concurrent

findings, the unsuccessful defendants have come before this Court by way of

second appeal.

5. Based on the arguments advanced by the learned counsel for the

appellants, the following substantial questions of law are formulated for

consideration in this second appeal.

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S.A.No.755 of 2017

“1. Whether the Courts below are justified in

declaring the easementary right by prescription when

there was no plea by the respondent seeking easementary

right by prescription.

2. Whether the judgments of the Courts below are

vitiated when respondent sought for declaration of

easement by necessity, the Courts below granted

declaration of easementary right by prescription”.

6. The learned counsel for the appellants vehemently contended that the

respondent/plaintiff sought for declaration of easement by necess