Advocates:
['M/S SARAVABHAUMAN ASSOCIATES', '', 'K DEEPAK SENTHIL', 'M/S M SUDHAKAR', '', 'K GNANASEKAR', 'R - RAJAMMAL']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 12.12.2019

CORAM:

THE HONOURABLE Mr.JUSTICE V.PARTHIBAN

S.A.No.902 of 2008

& MP.No.1 of 2008

Rajkumar

... Appellant/ Appellant /Plaintiff

Vs.

1.S.Sellammal

2.Nachimuthu

3.Rajammal

... Respondents/ Respondents/ Defendants

PRAYER: Appeal filed under Section 100 of Civil Procedure Code,

against the Judgment and Decree, dated 10.10.2007 made in

A.S.No103 of 2004, on the file of the Subordinate Judge,

Namakkal District, confirming the Judgment and Decree, dated

05.08.2004 made in O.S.No.11 of 2003, on the file of the

District Munsif Court, Namakkal.

For Appellant : Mr.S.Mukunth for Savabhauman Associates

For RR1 & 2

: Mr.M.Sudhakar

R3

: No Appearance

JUDGMENT

This second appeal has been filed against the Judgment and

Decree of the lower Appellate Court dated 10.10.2007 made in

A.S.No103 of 2004, confirming the Judgment and Decree of the

trial Court dated 05.08.2004 made in O.S.No.11 of 2003.

2. The appellant herein is the plaintiff and the respondents

herein are the defendants before the trial Court. For the sake

of convenience, the parties will be referred to as 'the

plaintiff and the defendants'.

3. The above suit was filed by the plaintiff before the

trial Court praying for declaration that the defendants 1 & 2

herein did not have any right of pathway over and across the

suit property and to restrain them by a consequential and

permanent injunction etc.

The case of the plaintiff before the trial Court was that

the third defendant, who was his mother had entered into an

agreement with the defendants 1 & 2 on 11.09.1995 giving right

of a way to the said defendants in a portion of the property

belonging to the plaintiff. At that time, the plaintiff was a

https://hcservices.ecourts.gov.in/hcservices/

minor. Without obtaining any directions from the Court, on her

own volition, the mother of the plaintiff, who was not a

natural guardian, had given a way to a portion of the suit

property for using as common pathway to the defendants 1 & 2.

Since such agreement was void ab initio, after becoming major,

the plaintiff challenged the same by filing the above suit.

4. The suit was resisted by the defendants 1 & 2. Earlier,

the mother of the plaintiff had filed a suit in O.S.No.190 of

1995 as she was facing disturbance from third parties in

interfering with her peaceful possession and enjoyment of the

property. But the said suit was withdrawn as being settled out

of Court and thereafter, an agreement was entered into between

the mother of the plaintiff and the defendants 1 & 2 by giving a

right of way in the suit property to the defendants 1 & 2.

5. The trial Court, after adverting to the materials

available on record, particularly, Ex.A2, which was an Agreement

dated 11.09.1995, had dismissed the suit particularly, on the

ground that the suit was hit by limitation since the suit came

to be laid after a period of three years, on attaining the age

of majority by the plaintiff. The trial Court has also held

against the plaintiff as regards the other issues framed in the

suit. The trial Court has held that the defendants 1 and 2 had

been enjoying the pathway for 20 years and it was a right

accrued to them through easement by prescription.

6. As against the trial Court's judgement and decree, an

appeal was preferred before the Sub-Court, Namakkal in

A.S.No.103 of 2004. The lower appellate Court while dealing

with the appeal, has agreed with the findings of the trial Court

and dismissed the appeal as being devoid of merits. As against

that, the present Second Appeal has been preferred by the

unsuccessful plaintiff.

7. Mr.S.Mukunth, learned counsel appearing for the plaintiff

would vehemently contend that the trial Court as well as the

Appellate Court have erred in dismissing the claim of the

plaintiff,