Second appeals against interim injunctions were dismissed. The High Court held the Second Schedule property is exclusively owned by the respondents based on ancestral records from 1918. The appellants failed to prove joint ownership or easement rights.
Second appeals dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.Nos.1837 & 1838 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.Nos.1837 & 1838 of 1997
S.A.No.1837 of 1997 :
Sakunthala (Died) ... Appellant/Respondent/ Plaintiff
2.Rajaram 3.Dhamothara Kannan ... Appellants 2 & 3
[Appellants 2 and 3 brought on record as LRs of the deceased sole appellant vide order dated 13.07.2022 made in C.M.P.(MD) Nos.5874 and 5875 of 2022 in S.A.Nos.1837 and 1838 of 1997]
Vs
1.S.V.Alagarsami Naidu (Died) 2.A.Kumaresan ... Respondents 1 & 2/ Appellants/Defendants 1 & 3
3.A.Subbulakshmi 4.A.Venkadeshan ... Respondents 3 & 4
[Respondents 3 and 4 were brought on record as LRs of the deceased 1st respondent vide order dated 17.04.2017 made in M.P.(MD) No.1 of 2013 in S.A.No.1837 of 1997]
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Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
S.A.Nos.1837 & 1838 of 1997
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 15.10.1997 made in A.S.No.188 of 1996 on the file of the Principal Sub Court, Srivilliputhur, reversing the judgment and decree dated 21.03.1996 made in O.S.No.420 of 1994 on the file of the Additional District Munsif's Court, Srivilliputhur.
For Appellants : Mr.M.Jothibasu
For R2 to R4 : Mr.D.P.Sundararaj
S.A.No.1838 of 1997 :
Sakunthala (Died) ... Appellant/5th Respondent/
5th Defendant
... Appellants 2 & 3
[Appellants 2 and 3 brought on record as LRs of the deceased sole appellant vide order dated 13.07.2022 made in C.M.P.(MD) Nos.5874 and 5875 of 2022 in S.A.Nos.1837 and 1838 of 1997]
Vs
1.S.V.Alagarsami Naidu (Died) 2.A.Kumaresan
... Respondents 1 & 2/ Appellants/Plaintiffs
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S.A.Nos.1837 & 1838 of 1997
7.A.Subbulakshmi 8.A.Venkadeshan ... Respondents 7 & 8
[Respondents 7 and 8 were brought on record as LRs of the deceased 1st respondent vide order dated 05.04.2018 made in M.P.(MD) No.1 of 2013 in S.A.No.1837 of 1997]
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 15.10.1997 made in A.S.No.189 of 1996 on the file of the Principal Sub Court, Srivilliputhur, reversing the judgment and decree dated 21.03.1996 made in O.S.No.647 of 1994 on the file of the Additional District Munsif's Court, Srivilliputhur.
For Appellants : Mr.M.Jothibasu For R3 to R6 : Mr.S.M.S.Johnny Basha Standing Counsel
For R2, R7 & R8 : Mr.D.P.Sundararaj
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S.A.Nos.1837 & 1838 of 1997
COMMON JUDGMENT
1.1. S.A.No.1837 of 1997 is arising out of O.S.No.420 of 1994, suit
for bare injunction filed by the deceased 1st appellant Sakunthala against respondents 1 and 2 restraining them from constructing stepstone in the 2nd schedule of the suit property.
1.2. S.A.No.1838 of 1997 is arising out of O.S.No.674 of 1994, suit
for declaration, permanent injunction and mandatory injunction filed by respondents 1 and 2 against the deceased 1st appellant.
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S.A.Nos.1837 & 1838 of 1997
respondents 1 and 2. Aggrieved by the said judgments, the 1st appellant had filed this second appeal. Pending second appeal, the 1st appellant passed away and her legal representatives were brought on record as appellants 2 and 3.
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S.A.Nos.1837 & 1838 of 1997
tried to open a door way towards the 2nd schedule and put up a stepstone over the 2nd schedule common pathway. It was further averred that if the 1st respondent is allowed to put up a stepstone in the 2nd schedule of the common pathway, it would completely hinder the usage of the pathway by the 1st appellant and hence, she was constrained to file a suit for bare injunction.
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S.A.Nos.1837 & 1838 of 1997
connection to the 1st appellant/5th defendant in their suit. The said suit was resisted by the 1st appellant by filing her written statement reiterating her stand in her suit for injunction.
let before him, came to the conclusion that the 1st appellant proved her joint
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S.A.Nos.1837 & 1838 of 1997
ownership over the 2nd schedule of the suit property and decreed the suit for injunction filed by her. The trial Court also found that respondents 1 and 2 failed to prove their exclusive title over the 2nd schedule property and hence, dismissed the suit for declaration, mandatory injunction and permanent injunction filed by them. Aggrieved by the same, respondents 1 and 2 filed first appeals and the first appellate Court reversed the findings of the trial Court and allowed their appeals. Hence, the 1st appellant is before this Court. As mentioned earlier, the 1st appellant died pending second appeal and appellants 2 and 3 were brought on record as her legal representatives.
S.A.No.1837 of 1997
“1. Whether the Lower Appellate Court is right in holding that the suit Second Schedule is not the common passage belonging to the Plaintiff and the Defendants?
2. Whether the Plaintiff is entitled to right of easement over the suit Second Schedule property especially when there are no other access to the Plaintiff's property in S.No.1603?
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S.A.Nos.1837 & 1838 of 1997
3. Whether the non-joinder of parties is fatal to the suit O.S.No.674 of 1994?”
S.A.No.1838 of 1997
“1. Whether the Lower Appellate Court is right in holding that the suit Second Schedule is not the common passage belonging to the Plaintiff and the Defendants?
2. Whether the Plaintiff is entitled to right of easement over the suit Second Schedule property especially when there are no other access to the Appellant's property in S.No. 1603?
3. Whether the non-joinder of parties is fatal to the suit O.S.No.674 of 1994?”
1st appellant by producing Ex.A.2 sale deed in her favour and Ex.A.13 and Ex.A.15 settlement deeds executed by the grandfather of the vendor of the 1st appellant. The learned counsel also referred to Exs.A.3, A.7, A.8 and A.10 wherein, according to him, a reference had been made with regard to
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S.A.Nos.1837 & 1838 of 1997
the 2 nd
the 2nd schedule of the suit property as a common pathway. The learned counsel also had taken this Court to the findings of the trial Court based on the above said exhibits to the effect that the 1st appellant had proved her joint ownership over the 2nd schedule of the suit property.
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S.A.Nos.1837 & 1838 of 1997
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S.A.Nos.1837 & 1838 of 1997
1 st
1st respondent's brother and his mother in favour of one Subbammal in the year 1947. Ex.B.2 is a sale deed executed by the 1st respondent and his brother Veerasami in favour of Subbammal dated 29.04.1963, whereunder the northern portion of S.No.1604 with a north-south measurement of 30' was sold to Subbammal. The remaining property in the survey number on the southern side has been in possession and enjoyment of the family of respondents 1 and 2. In the absence of any evidence to show that the vendor of the appellants purchased 1/3rd share in S.No.1604 from the 1st respondent's father or his descendants, there may not be any impediment for this Court to come to a conclusion that respondents 1 and 2 proved their exclusive ownership over the 2nd schedule of the suit property. In the light of the old documents viz., Exs.B.9 and B.10, the decree granted by the first appellate Court in favour of respondents 1 and 2 cannot be interfered with.
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S.A.Nos.1837 & 1838 of 1997
joint ownership of the appellants over the suit 2nd schedule property, this Court is unable to accept the contentions raised by the learned counsel for the appellants and hence, the substantial questions of law raised in these second appeals are answered against the appellants. The Second Appeals stand dismissed by confirming the judgment and decree passed by the first appellate Court. However, the dismissal of the suit for bare injunction filed by the 1st appellant will not come in the way of the appellants filing appropriate suit seeking declaration of their easementary right, if any. With these observations, the Second Appeals are dismissed. In the facts and circumstances of the case, there will be no order as to costs.
02.01.2023
NCC: Yes Index:Yes/No Internet:Yes abr
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S.A.Nos.1837 & 1838 of 1997
S.SOUNTHAR, J.
abr
To
S.A.Nos.1837 & 1838 of 1997
02.01.2023
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3 issues framed by the court
Whether the lower appellate court was right in holding the suit Second Schedule property is not a common passage?
Whether the Plaintiffs are entitled to a right of easement over the suit Second Schedule property given the lack of other access to S.No.1603?
Whether the non-joinder of parties was fatal to the suit O.S.No.674 of 1994?
1 provisions across 1 enactments
Sakunthala (Died)
Rajaram
Dhamothara Kannan
S.V.Alagarsami Naidu (Died)
A.Kumaresan
A.Subbulakshmi
S.Sounthar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
