IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 25.08.2025 Pronounced on 14.11.2025 CORAM THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI S.A.No.103 of 2020 C.M.P.No.2167 of 2020

1.Dhanapal

2.Sabapathy (died)

3.Thaiyalnayaki 4.Silambarasan

5.V.Devi

6.Brammadevi

7.Sabanadevi [Appellants 3 to 7 brought on record as legal heirs of the deceased 2^nd appellant vide order of Court dated 09.09.2022 made in C.M.P.No.14940, 14941 & 14944 of 2022 in s.A.No.103/2020 and C.M.P.No.2167 of 2020]

...Appellants Vs.

Kaliyaperumal ...Respondent Prayer : Second Appeal filed under Section 100 CPC, 1908 against the judgment and decree dated 18.02.2019 in A.S.No.25 of 2017 on the file of learned Principal Subordinate Judge, Mayiladuthurai reversing the well considered judgment and decree dated 04.02.2017 in O.S.No. 36 of 2007 on the file of learned District Munsif, Sirkazhi and the allow the second appeal.

For Appellant : Mr. S.Saravana kumar For Respondent : Mr.B.Jawahar

JUDGMENT

This Second Appeal is preferred against the judgment and decree dated 18.02.2019 in A.S. 25 of 2017 on the file of learned Principal Subordinate Judge, Mayiladuthurai, reversing the judgment and decree dated 04.02.2017 in O.S.No. 36 of 2007 on the file of learned District Munsif, Sirkazhi.

2.The parties will be referred to by their ranks in the suit.

3.The plaintiff has filed the suit in O.S.No.36/2007 for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment in the suit property.

4.According to the plaintiff, the suit properties were purchased by him under two sale deeds dated 20.07.1994 and 06.10.1984 respectively. The plaintiff has put up a thatched house in the 1^st item of the suit property and the assessment is made in the name of the plaintiff. The entire suit properties are in the possession and enjoyment of the plaintiff. It is further stated that to the north of the suit properties the plaintiff is having another tiled house in Survey No.230/1. The defendant's houses are lying to the north of the said tiled house belonging to the plaintiff. The plaintiff has put up fence in the suit properties in order to prevent people and cattles entering into the suit property. He had also installed an iron gate on the front side of the suit property. While so, the defendants are threatening that they are going to form a road in the suit property.

Hence, the suit.

5. The claim of the plaintiff is resisted on the side of the defendants stating that the defendants are having access to their houses only through the iron gate put up by the plaintiff and that there is no other alternative access for the defendants to reach their properties from Radhanallur road. It is further submitted that the above three meter width passage is situated in S.Nos.230/4, 230/5 and 230/1 and the same is used by the plaintiff and the defendants' and their ancestors for more than 12 years without any objection. Hence, the defendants are having easementary right over the said passage. While so, the plaintiff in the year 1999 without the consent of the defendants has put up the iron gate for which a panchayat was convined on 20.04.1999. In the said panchayat, the plaintiff agreed to remove the iron gate, but failed to do so. Hence, the plaintiff is not entitled for the relief claimed in the above suit and prayed for dismissal of the suit.

6.The trial Court dismissed the suit filed by the plaintiffs.

Aggrieved by this, the plaintiff preferred the appeal suit in A.S.No.25 of 2017. The first appellate Court, decreed the suit of the plaintiff on the ground that the defendants failed to establish the existence and the usage of the passage. Challenging the judgement and decree of the First Appellate Court this second appeal is preferred.

7.The learned counsel for the appellants/defendants would submit that through Exs.B.1 to B.12, the defendants have established the existence and usage of the disputed passage and the same was not considered by the Firs