2023:MHC:5426

S.A.No.625 of 2007

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

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S.A.No.625 of 2007

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

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S.A.No.625 of 2007

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:-

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S.A.No.625 of 2007

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

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S.A.No.625 of 2007

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 l