IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.05.2025 CORAM:

THE HONOURABLE MRS. JUSTICE R.KALAIMATHI and M.P.No.1 of 2012 T.Senthilkumar @ Kolanjinathan ... Appellant/Defendant vs.

1.Natarajan(died)

2.Palaniammal

3.Dharmaraj 4.Sivakumar (R2 to R4 brought on record as LRs.of the deceased sole respondent viz., Natarajan vide Court order dated 15.11.2021 made in CMP.Nos.7234, 7235 & 7240 of 2020) ... Respondents/Plaintiffs This Second Appeal is filed under Section 100 of C.P.C. to set aside the decree and Judgment dated 22.09.2011 passed in A.S.No.59 of 2009 on the file of the Subordinate Court, Ariyalur, reversing the decree and Judgment dated 21.08.2009 passed in O.S.No.209 of 2007 by the District Munsif Court, Ariyalur.

For Appellant : Mr.P.Valliyappan Senior Counsel for M/s.S.M.S.Sriram Narayanan For Respondent : Mr.C.Sa.Krishnan for M/s.V.Srimathi

JUDGMENT

This second appeal has been preferred by the plaintiff against the Judgment and Decree dated 22.09.2011 passed by the Subordinate Court, Ariyalur in A.S.No.59 of 2009.

2. Parties are indicated herein as per their litigative status and ranking before the Trial Court.

3. According to the plaintiff, S.F.No.483/3 & 491/4 belongs to the plaintiff ancestrally in Thathanoor, Kumizhiyam Road. From time immemorial, on the eastern side, Chellamuthu and the plaintiff reach their lands along the pathway shown in Yellow colour in the plan, which is situated in S.F.No.483/3. Through his pathway only cart, cattle and men used to reach the lands on the eastern side from the road and there is no other pathway. The plaintiff and his predecessor in title used this pathway from time immemorial and even prescribed right by their open, continuous and peaceful enjoyment of pathway as of right.

3.1. The plaintiff purchased the land in S.F.No.491/4 from Chellamuthu on 13.10.1998. The defendant purchased the land in S.No.483/3 from the very same person - Chellamuthu on 03.12.2003. In both the sale deeds, specific recitals regarding pathway was omitted to be mentioned. Neverthless, the pathway is being used by the plaintiff as before and the non-mentioning of pathway in the sale deed will not erase the plaintiff's right of the pathway. Since easementary right runs with the land, the defendant objected the plaintiff from using the pathway, hence the suit was filed.

4. Whereas, the defendant filed the written statement contending interalia that it is a lame excuse that the vendor omitted to state the pathway in the suit property. He neither objected nor created any problem to the plaintiff. Since all of a sudden, the plaintiff is trying to create and claim new pathway right in the property of the defendant arbitrarily without having any semblance of right in the suit property. The defendant used to take the pesticide with water in a barrel in a tractor and for which the defendant for his personal use left the suit property in his land. The plaintiff and his predecessors have their pathway from the north. Even the sale deed of the plaintiff discloses the fact that in the four boundaries details, it is mentioned as on the northern side 'Ozhungai,' which nullifies the claims of the plaintiff. The plaintiff claims are not sustainable in law.

5. Based on the diverget pleadings, the Trial Court framed the following issues :-

i) Whether the plaintiff is entitled for declaration of easementary right of pathway and for consequential permanent injunction as prayed for?

ii) To what other relief, the plaintiff is entitled to?

6. At trial, to substantiate the plaint details, on the plaintiff’s side, the plaintiff has examined himself as P.W1 and ten documents have been marked. Ex.A2 is the Sale Deed dated 13.10.1998 executed in favour of Defendant T.Senthilkumar in respect of S.No.491/4. Ex.A3 is the Sale Deed executed in favour of the defendant Natarajan by Chellamuthu dated 03.12.2003 in respect of S.No.483/3. Ex.A6 to Ex.A10 are the copies of Field Measurement Book. On the defendant side, four witnesses were examin