IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 11.11.2025 Pronounced on 09.02.2026 CORAM THE HONOURABLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI S.A.No.278 of 2019 and C.M.P. No.4099 of 2019 K. Sundarapandian ...Appellant Vs.

S. Ganesan … Respondent Prayer: Second Appeal filed under Section 100 CPC, 1908 to set aside the decree and judgment dated 24.09.2018 passed in A.S. No.38 of 2015, on the file of the Principal Subordinate Court, Krishnagiri, reversing the Judgment and decree dated 25.09.2015 passed in O.S. No.333 of 2008, on the file of the District Munsif Court, Krishnagiri.

For Appellant : Mr.S.Kanniah For Respondent: No appearance.

JUDGMENT

Challenge in this Second Appeal is made to the decree and judgment dated

24.09.2018 passed in A.S. No.38 of 2015, on the file of the Principal Subordinate Court, Krishnagiri, reversing the Judgment and decree dated 25.09.2015 passed in O.S. No.333 of 2008, on the file of the District Munsif Court, Krishnagiri.

2. The appellant as plaintiff has preferred the above suit for declaring the pathway marked as 'CDEF' in the rough sketch as common to both the plaintiff and the defendant and for easement of necessity and prescription granting a mandatory injunction against the defendant to remove all the obstructions over the said common pathway including the bathroom, toilet and storage water tank marked as 'X’,’Y’ & ‘Z' in the sketch and for costs.

3. The parties are referred to as per their ranking in the trial court

4. According to the plaintiff, his mother had purchased the suit property under a registered sale deed dated 26.03.1966. Thereafter, the plaintiff has constructed a house on the eastern side, described as 'A' in the plaint rough plan. The defendant's house is located on the western side of the plaintiff's house and the same is mentioned as 'B' in the rough plan. Parallel to the two houses, there is a common pathway measuring about 72 feet in length and 3 ½ feet in width, marked as 'CDEF' in the plaint plan. Apart from that, there are pipe lines belonged to both parties, embedded in it. In these circumstances, the defendant has wrongly constructed a toilet and bathroom, and a water tank in the said pathway, described as 'X', 'Y' and 'Z' in the rough plan. Hence, the suit.

5. The claim of the plaintiff is resisted on the side of defendant stating that the above constructions are made only on his own land. Further stated that, while constructing the house, the defendant found that the plaintiff has occupied the defendant's land to an extent of 2 feet and embedded the pipe line in it. There is no common pathway existing as alleged by the plaintiff and the claim of the plaintiff is false. The extent mentioned in the patta is contra to the actual extent mentioned in the sale deed 26.03.1966 in favour of plaintiff's mother. Hence, prayed for dismissal of the suit.

6. The trial court, upon considering the materials on record, decreed the suit in favour of the plaintiff. Aggrieved by this, the defendant has preferred the appeal suit in A.S. No.38/2015. The first appellate court reversed the judgment and decree passed by the trial court. Challenging the same, the present Second Appeal is preferred by the plaintiff.

7. The learned counsel for the appellant / plaintiff would submit that the first appellate court erred in holding that there is no documentary evidence in support of the claim of common passage by the plaintiff. The plaintiff has sought for easement of necessity for the right to enjoy the air and light through his windows and right in the common passage. The first appellate court erred in observing that there is no reference in the sale deeds produced by the parties with respect to the common pathway. The first appellate court erred in ignoring the report of the Advocate Commissioner while deciding the dispute between the parties. The first appellate court erred in holding that the plaintiff who has sought for the relief of declaration is not entitled to seek the relief of e