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REVATHY RAGHAVAN

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SUPREME COURT OF INDIA

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CASE NO.:

Appeal (civil) 4715 of 2000

PETITIONER:

Hero Vinoth (minor)

RESPONDENT:

Seshammal

DATE OF JUDGMENT: 08/05/2006

BENCH:

ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Appellant calls in question legality of the judgment

rendered by a learned Single Judge of the Madras High Court

allowing the Second Appeal filed by the defendant i.e.

respondent herein under Section 100 of the Code of Civil

Procedure, 1908 (in short ’CPC’).

Material facts in a nutshell are as follows :

A suit was filed by the appellant as plaintiff for

permanent prohibitory injunction to restrain the defendant

from causing obstruction in plaintiff putting up compound

wall in his portion of property bearing R.S. No.418/5, South

Pidari Street, Seerkazi Town along the ’GH’ line in the rough

plan attached to the plaint.

A Partition deed dated 23.11.1950 was executed among

five brothers; Narayanaswami, Parangusa Chettiar,

Purushothaman Chettiar, Radhakrishnan Chettiar and

Aravamutha Chettiar. Under the said partition, ’C’ Schedule

items were allotted to Purushothaman Chettiar and ’E’

schedule items were allotted to Aravamutha Chettiar. Under

the said partition, a portion of property No.418/5, South

Pidari Street, Seerkazi measuring 19’6" + 22’6" x 160’/2 was

allotted to Purushothaman Chettiar and another portion to the

east thereof measuring 22’6" x 160’ was allotted to the share

Aravamutha Chettiar. On the death of Aravamutha Chettiar,

his portion of R.S. No.418/5 was purchased by plaintiff from

his legal heir. Defendant is the widow of Purushothaman

Chettiar and her property is situated on the western side of

plaintiff’s property, which was originally allotted to

Aravamutha Chettiar.

According to plaintiff, he is entitled to enclose entire

property and defendant has no right of access to the backyard

of her premises, through the passage (lane) situated in the

eastern extremity of plaintiff’s property and the backyard of

plaintiff’s property. Defendant was causing obstruction in the

construction of compound wall by him on the ’GH’ line and the

same was to be prevented by a decree of permanent

prohibitory injunction. According to plaintiff, the defendant

would reach her backyard through her main house situated in

the front side of the property and, therefore, she was not

entitled to claim any right of way through his property.

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Defendant did not dispute the ownership of plaintiff over

the property which was originally allotted to Aravamutha

Chettiar and subsequently purchased by plaintiff. Her stand

was that she has a right of way in terms of the partition deed

and if construction is put on the entire ’GH’ line, her right of

way will be obstructed. She contended that plaintiff if at all

entitled to construct any compound wall, should not cause

any obstruction to her right to way granted under the Partition

deed .

Trial Court took oral and documentary evidence and

came to the conclusion that plaintiff is entitled to succeed.

Trial court was of the view that the right of way provided to

Purushothaman Chettiar (defendant’s husband) under the

partition deed was an easement of necessity and when

appellant has got other access situated on the northern side

the necessity has ceased to exist under Section 41 of the

Indian Easement Act, 1882 (in short the ’Act’) and

consequently, plaintiff is entitled to put up construction as

prayed for.

Against the said decision of trial court, defendant-

respondent preferred appeal as A.S. 98 of 1996 on the file of

Additional Sub Judge, Mayiladuthurai, but without success.

In the second appeal filed by the defendant-respondent,

the following questions were formulated as substantial

questions of law arising for consideration:

(a) Whether the courts belo