BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06.03.2026 CORAM:

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Sollamuthu (Died)

1.Isakimuthu 2.Muniappan

3.K.Babukanth : Appellants Vs.

Narayanamuthu (Died)

2.N.Gomathi

3.N.Sadhasivam

4.N.Srinivasan

5.N.Sumithira : Respondents (respondent Nos.2 to 5 are brought on record as legal representatives of the deceased sole respondent vide Court Order dated 05.01.2023 made in M.P.(MD).Nos.1 to 3 of 20215 in S.A.(MD).No.26 of 2007 PRAYER: Appeal filed under Section 100 of C.P.C. praying to set aside the Judgment and Decree passed in A.S.No.21 of 2003 on the file of the Sub Court, Tuticorin, dated 08.10.2004 reversing the judgment and decree passed in O.S.No.138 of 2001 on the file of the learned Principal District cum Judicial Magistrate, Thiruchendur, dated

22.10.2002.

For Appellant : Mr.M.P.Senthil For R-2 : Mr.G.Prabhurajadurai For R-3 to R-5 : Ms.K.Shwathini

J U D G M E N T

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This Second Appeal has been filed challenging the judgment and decree passed by the Sub Court, Tuticorin, dated 08.10.2004 made in A.S.No.21 of 2003 reversing the judgment and decree passed by the learned Principal District Munsif cum Judicial Magistrate, Thiruchendur in O.S.No.138 of 2001 dated 22.10.2002.

2. Heard the learned counsel on either side.

3. The legal heirs of the deceased plaintiff are the appellants in the Second Appeal. The plaintiff filed the suit seeking for the relief of declaration to declare that he has a right over a 10 feet pathway in the “B” Schedule property and for a mandatory injunction directing the defendant to remove the fencing that has been put up in the pathway.

4. The case of the plaintiff is that originally “A” and “B”

Schedule properties were owned by one Brahmaiya Nadar. After his demise, the property was inherited by his three sons. The “A” Schedule property was purchased by the plaintiff from the legal heirs and the “B” Schedule property was purchased by the defendant. The further case of the plaintiff is that the original owners of the property had specifically provided a pathway on the western side of the “B” Schedule property in order to access the “A” Schedule property. This pathway was utilised by the plaintiff from the year 1967 onwards.

5. According to the plaintiff, apart from the said pathway, there was no other pathway available to the plaintiff to have access to his property in the “A” Schedule. Thus, plaintiff has claimed for easement of necessity. While so, the defendant had fenced the pathway and thereby, prevented the plaintiff from having access to the pathway. In view of the same, the plaintiff was forced to use the property of the third parties in order to access his property.

6. It is under the above circumstances, the suit came to be filed before the trial Court seeking for a declaration that the plaintiff is entitled for 10 feet pathway in the “B” Schedule property as eastment of necessity and for mandatory injunction.

7. The case of the defendant is that there is absolutely no mention about the allotment of any pathway in favour of the plaintiff in the sale deed that was executed in favour of the plaintiff. Therefore, the plaintiff cannot claim the right of pathway over the property belonging to the defendant. The further case of the defendant is that there is an alternate pathway available to the plaintiff and therefore, the plaintiff cannot claim easement of necessity. Accordingly, the defendant sought for dismissal of the suit.

8. The trial Court, on considering the facts and circumstances of the case and after specifically placing reliance upon the evidence of P.W.2, came to a conclusion that even though there is no mention about the availability of the pathway in the “B” Schedule property in the document, there was an arrangement made by the original owner to allow a 10 feet pathway to the plaintiff to access his property in the “A” Schedule property. Apart from that, the trial Court also held that there was no other alternative pathway available for