2025:MHC:37 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.12.2024 CORAM:

THE HONOURABLE MS.JUSTICE R.N.MANJULA S.A.No.561 of 2012 and M.P.No.1 of 2012 A.Sathya ... Appellant / Defendant Vs.

1.K.Selvaraj (died)

2.Karuppathal

3.Suseela

4.Madhuvanthi

5.Abishek Kumar (respondents 2 to 5 brought on record as LRs of the deceased sole respondent viz., K.Selvaraj vide order dated 04.02.2022 in CMP.Nos.6120, 6121 and 6122 of 2018)

... Respondents / LRs of Plaintiff Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 28.02.2012 made in A.S.No.41 of 2011 on the file of the Principal Sub Court, Erode, reversing the judgment and decree dated 15.03.2011 made in O.S.No.90 of 2008 on the file of the District Munsif-cum-Judicial Magistrate Court, Kodumudi.

For Appellant : Mr.N.Manokaran For Respondents : Ms.P.Vidhyashree for M/s.P.T.Ramadevi

JUDGMENT

This Second Appeal has been filed to set aside the judgment and decree dated 28.02.2012 made in A.S.No.41 of 2011 on the file of the Principal Sub Court, Erode, reversing the judgment and decree dated 15.03.2011 made in O.S.No.90 of 2008 on the file of the District Munsif-

cum-Judicial Magistrate Court, Kodumudi.

2. Heard Mr.N.Manokaran, learned counsel for the appellant and Ms.P.Vidhyashree, learned counsel for the respondents and perused the materials available on record.

3. The defendant is the appellant against whom the plaintiff has filed a suit for mandatory and permanent injunction. The Trial Court has dismissed the suit. In the First Appeal preferred by the plaintiff, the First Appellate Court has allowed the First Appeal by reversing the judgment and decree of the Trial Court and thereby decreed the suit. Aggrieve over that, the defendant has filed this Second Appeal.

4. The short facts pleaded in the plaint are as follows:

The suit property was purchased by the plaintiff on 12.06.2002 from one Kanagasabapathy which measures 4020 Sq.ft and it is a vacant site situated on the eastern side of north-south Railway Station Road. There is a 12 feet width north-south pathway situated on the eastern side of the ' A' schedule. In order to connect 12 feet pathway to Railway Station Road, there is a 14 feet width common pathway. 14 feet width common pathway is a path leading to 12 feet width pathway and 12 feet pathway is described under 'B' schedule of the suit property. The plaintiff and his predecessor in title had been enjoying the suit 'A' schedule pathway without any disturbance. The defendant's property is adjacent to the plaintiff's property. From the suit pathway to the middle of the defendant's property, there is a 4 feet pathway which would lead to the plaintiff's house. On the eastern side of the 'B' schedule pathway, there is a marriage hall belonging to the defendant. The pathway has been enjoyed by the plaintiff and others.

4.1. On 31.05.2008 when the plaintiff was not in station, the defendant had encroached 100 feet on the eastern side of the suit property and put a gate and closed the 'B' schedule pathway. The defendant has got no right to close the pathway. Despite she was asked to remove the gate, she did not heed. The defendant has been causing hindrance by putting a generator and electrical lights in the pathway. The defendant had also filed a suit in O.S.No.79 of 2008 by claiming illegal rights. Hence, the plaintiff has filed this suit for mandatory injunction to remove the gate and restore the pathway to its original position and permanent injunction against the defendant to restrain them from preventing the plaintiff to use the pathway.

5. The averments made in the written statement filed by the defendant are as follows:

The allegation that there is a pathway of 12 feet width in existence as described in 'B' schedule is not true. It is true that the defendant's property is adjacent to the plaintiff's property. It is false to state that there is a pathway running in the middle of the defendant's property touching t