S.A.No.1207 of 2006

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 20.01.2023

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.1207 of 2006

1.Kannan

2.Pandurangan (Deceased)

3.Saroja

4.Neelavathi

5.Senthamizhselvan

6.Tamizhselvi

...Appellants

Vs.

D.Arunachalam

...Respondent

(6^th appellant brought on record as LR of the deceased 2^nd appellant

vide order dated 12.09.2017 made in C.M.P.No.15702 to 15704 of

2017 in S.A.No.1207 of 2006).

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S.A.No.1207 of 2006

Prayer: Second Appeal is filed under Section 100 of the Code of Civil

Procedure against the Judgment and Decree made in A.S.No.47 of

2005 on the file of the Principal Subordinate Judge, Virudhachalam

dated 27.09.2005 confirming the Judgement and Decree made in

O.S.No.83 of 2002 on the file of the District Munsif Cum Judicial

Magistrate Court, Thittakudi dated 29.11.2004.

For Appellants

:

Mr.V.Ayyadurai

Senior Counsel

For Mr.V.B.Perumal Raj

For Respondent

:

Mrs.A.Nilaphar

JUDGMENT

The defendants are the appellants before this Court challenging

the Judgement and Decree passed by the Principal Sub Court,

Virudhachalam in A.S.No.47 of 2005, in and by which the learned

Principal Sub Judge has confirmed the Judgement and Decree passed

by the learned District Munsif cum Judicial Magistrate, Thittakudi in

O.S.No.83 of 2002. The brief facts are as follows and the parties are

referred to in the same rank as before the Trial Court.

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S.A.No.1207 of 2006

2. The suit in question is filed to declare the suit property

(pathway) as common to both the plaintiff and the 1^st defendant and for

a consequential injunction restraining the defendants from interfering

with the plaintiff's usage of the said pathway.

3. The said pathway is a grama natham formed by the plaintiff

contributing 1 1/8 feet on his side and the 1^st defendant contributing 1 -

1/8 feet on his side. The length of the pathway is 57 feet and the

breadth is 2 ¼ feet.

4. The case of the plaintiff is that the right to enjoy the said

pathway has been reduced into writing on 31.01.1989 in an

unregistered agreement and they have been in enjoyment of the said

pathway for over decades. However, on account of recent difference of

opinion between the plaintiff and the 1^st defendant, the 1^st defendant

along with the other defendants had trespassed into the suit property on

01.02.2002 and tried to interfere with the plaintiff's enjoyment of the

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S.A.No.1207 of 2006

same. Therefore, the plaintiff has come forward with the suit in

question.

5. The 1^st defendant had filed a written statement in which the

defendants had denied the averments contained in the plaint and they

had also contended that the plaintiff had filed an earlier suit in

O.S.No.202 of 2001 in respect of the very same pathway for bare

injunction. While that suit was pending, the plaintiff had filed the

instant suit. The defendants also raised a plea that the plaintiff had an

alternative pathway to reach the rear side of his property through his

house and it is this pathway that the plaintiff is using. That apart, the

defendant had contended that on 10.05.1995, the Special Thasildar had

granted patta under the updating survey schemes and they would state

that the plaintiff is trying to establish a new right.

6. Further, the plaintiff after obtaining an interim order in the

instant suit in I.A.No.429 of 2002 had withdrawn the earlier suit. The

defendants had contended that the suit in respect of the very same

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S.A.No.1207 of 2006

property is not maintainable.

7. The Trial Court had framed the following issues:

“1/tHf;F brhj;jpy; thjpf;F mDgtk;

vJt[k; ,y;iy vd;gJ cz;ikah>

2/thjp nfhUk; gupfhuk; bgw mUfuh>

3/ntW vd;d gupfhuk;> “

8. The plaintiff had examined himself as P.W.1, the 2^nd defendant

was examine