IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

: 15.12.2021

PRONOUNCED ON

: 04.01.2022

CORAM :

THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

S.A. No.1351 of 2010

1.Kamaludeen

2.Saiyudeen

3.Jawahar Ali

4.Hussain Ali

5.Jawahar Nisha

...Appellants/Respondents/

Plaintiffs 2 to 6

versus

Jayaraman

...Respondent/Appellant/Defendant

PRAYER: Second Appeal is filed under Section 100 of the Civil

Procedure Code, against the judgment and decree dated 19.04.2010

made in A.S.No.47 of 2009 on the file of the learned Principal

Subordinate Judge, Mayiladuthurai, in reversing the judgment and

decree dated 06.08.2008 made in O.S.No.138 of 2006 on the file of

the learned Principal District Munsif, Mayiladuthurai.

For Appellants : Mr.A.Muthukumar

For Respondent

: Mr.S.Southar

J U D G M E N T

This Second Appeal is focussed as against the judgment

and decree dated 19.04.2010 passed in A.S.No.47 of 2009 by the

learned Principal Subordinate Judge, Mayiladuthurai, in reversing

the judgment and decree dated 06.08.2008 passed in O.S.No.138 of

2006 by the learned Principal District Munsif, Mayiladuthurai.

2. For the sake of convenience, the parties are

hereinafter referred to as per their litigative status before the

trial Court.

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

3. The laconic averments made in the plaint, are as

follows:

(i) The suit A schedule property belongs to the first

plaintiff. The defendant is the western neighbour of the first

plaintiff, as detailed in B schedule of the plaint. In earlier,

both of them have demolished their respective buildings and put

up a new and pucca building. Originally, and as well as now, the

western wall of the first plaintiff exclusively belongs to the

plaintiffs. At the time of construction, the defendant and his

brother gave numerous troubles. So, the first plaintiff has

filed the suit in O.S.No.213 of 1993 on the file of the learned

Principal District Munsif, Mayiladuthurai, and the same was

decreed in her favour.

(ii) Afterwards, the defendant has filed a suit for

permanent injunction, as against the first plaintiff in

O.S.No.429 of 2000 on the file of the learned Principal District

Munsif, Mayiladuthurai and after contest the suit was dismissed.

The defendant has left a lane of nearly 4 feet inbetween the

first plaintiff western wall and his eastern wall. The western

face of the first plaintiff's western wall could not be cement

plastered or white washed. When at the time the plaintiffs were

arranging to plaster the same, the defendant has refused to allow

them. For the same, the defendant had attributed the reasons as

if he has incurred heavy expenses in the litigations and the

first plaintiff has to bear the same. The first plaintiff is

entitled to go through the lane portion of the defendant to

cement plaster. In view of the easement of necessity also, the

plaintiff is entitled to go there. So, an Advocate notice was

issued to the defendant on 20.09.2005. Though the defendant

acknowledged the same on 28.09.2005, he has neither replied nor

complied with the demands. Hence, the suit.

4. The case of the defendant as per the averments found

in the written statement, is as follows:

(i) The description of the property found in the plaint

is a misconceived one. The prayer sought by the plaintiffs

cannot be entertained. The father of the defendant on 17.02.1953

purchased the defendant's property and the property situated on

the west side of the defendant's property and from the date of

purchase he is in the possession and enjoyment of the same. On

20.06.1986, he sold the said property in favour of the defendant

and his brother.

(ii) While at the time, the father of the defendant

purchased the said property, the length of East-West is 30 feet.

During such time, on the eastern side of the suit property, a hut

belongs to one Rajammal was there. Afte