IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2025 CORAM:

THE HONOURABLE Dr. JUSTICE R.N.MANJULA Srinivasan ... Appellant Vs.

Karunamurthy ... Respondent Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree in O.S. No.173 of 2001 on the file of the Civil Judge, Arani dated 27.03.2006 confirming the decree and judgment in A.S. No. 40 of 2006 on the file of the Subordinate Judge, Arani dated 08.11.2006.

For Appellant : Mr. B. Vijayakumar For Respondent : Mr. M. Suresh

J U D G M E N T

The Second Appeal has been filed challenging the judgment and decree passed in O.S. No. 173 of 2001 dated 27.03.2006, which was confirmed by the judgment and decree in A.S. No. 40 of 2006, dated

08.11.2006.

2. The unsuccessful defendant is the appellant. The suit was filed by the plaintiff seeking a declaration and a permanent injunction.

3. The trial Court decreed the suit, and the first appeal was also dismissed, confirming the judgmenet of the trial Court. Aggrieved by the same, the defendant has filed this second appeal.

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

The suit property was originally belonged to one Chinnathambi Gounder who had two sons namely Arumugam and Perumal Gounder. The plaintiff is the son of Arumugam. Perumal Gounder is the deceased, and the defendant is his son. A partition was entered into between Arumugam and Perumal Gounder, and on that basis, the suit schedule property was allotted to Arumugam. The plaintiff has acquired rights or interest in the suit property in that manner. On 04.12.1995, a further partition was entered into between the plaintiff, his father Arumugam and the plaintiff’s other brother, Rajendran. Under this partition, the first item of the property was allotted to the plaintiff, and as per the terms of the partition deed, the pathway right in the ‘B’ schedule property was given only to the plaintiff and his brother.

4.1. The defendant was allotted with a vacant site on the Eastern side of the suit property, on which he has constructed a house. Further to the eastern side of the said house, there is a street, and the defendant can access his house only through that street. Therefore, he has no necessity to enter into the plaintiff’s pathway in ‘B’ schedule property. The plaintiff has purchased his brother’s share through a sale deed dated 09.02.2000 and has constructed a house on that portion. While the plaintiff is in enjoyment of the entire share originally allotted to his father by paying kist, the defendant is falsely claiming a right over the pathway belonging to the plaintiff. Hence, the plaintiff has filed the present suit seeking the relief of a permanent injunction in respect of the ‘B’ schedule property.

5. The written statement of the defendant in brief:

The suit passage is not the exclusive pathway of the plaintiff. It belongs to both the plaintiff’s family as well as the defendant’s family. The plaintiff’s father Arumuga Gounder, had sold his half share in the vacant site and house measuring 14 feet east to west and ¾ feet north to south in big street. The remaining half share belonged to the defendant’s father, Perumal Gounder. Perumal Gounder died 15 years ago, and the defendant, being his sole legal heir, became the owner of the remaining portion retained by his father.

5.1. On the western side of the house, a thottam belonging to both the plaintiff’s and defendant’s families is situated, and, it can be accessed only through the common passage from erikarai street. The north-south measurement of the plaintiff’s house property is 18 feet and the north- south measurement of the common passage is 6 feet. The undivided thottam belonging to the plaintiff’s family and the defendant’s family measures 24 feet north to south.

5.2. The plaintiff’s house property and the common thottam are situated in S.No.279/17. The house property belonging to the defendant is situated in natham S.No.281/1 and it measures 11 ½ feet north