Plaintiff sued to declare an easementary right over a 3-feet passage and remove encroachment. Both lower courts found no easement was proved. The High Court held the claim failed for want of 20 years' continuous use and lacked pleadings for easement by necessity, and dismissed the second appeal finding no perversity.
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SA.No.1065 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.04.2024
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.1065 of 2009
Ramasamy Kounder
... Appellant
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code against the judgment and decree in A.S.No.12 of 2007 dated 26.09.2008 on the file of the Principal Subordinate Judge, Villupuram confirming the judgment and Decree in O.S.No.386 of 2004 dated 27.07.2005 on the file of the 1st Additional District Munsif, Tirukoilur.
For Appellant : Mr.N.Suresh
For Respondents : Ms.Mahamandra Rajalakshmi for R1 Mr.T.S.Baskaran for R2 and R3 *****
SA.No.1065 of 2009
J U D G M E N T
The appellant herein was the plaintiff before the Trial Court. The respondents herein are the defendants before the Trial Court.
schedule property is a property belongs to the defendants, and that the plaintiff cannot have any easementry right over the same. It was also
SA.No.1065 of 2009
contended by the defendants that the description of the property is defective.
Hence, prayed to dismiss the suit.
SA.No.1065 of 2009
approached this Court by way of this Second Appeal.
SA.No.1065 of 2009
their title has been confirmed by virtue of a patta, that too which has been granted 5 years prior to filing of the suit. Therefore, contended that the case of the plaintiff that they are in enjoyment of “B” schedule property for more than 25 years cannot be believed. It was also contended by the learned counsel for the respondents that there is also an another alternative passage to reach “B” schedule property and that by using such passage, he put up construction in the A schedule property. Therefore, the contention put forth by the plaintiff that there is no other way to reach A schedule property is contrary to factual position. Hence, prayed to dismiss the Second Appeal.
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the Judgment, it is amply clear that the 3 feet passage, which has been harping upon by the learned counsel for the appellant was left only for the defenant's usage. Apart from that while perusing the plaint averment, it is the contention of the plaintiff that they have been enjoying the B schedule property for more than 25 years, but the Trial Court has found that A schedule property was allotted to the plaintiff only by virtue of patta. In this regard, the learned counsel for the appellant would submit that the suit property comes under the classification of Natham and that they have been in possession and enjoyment of the said property for more than 25 years. To substantiate such contention, no document has been filed except Ex.A2 dated 24.03.2001.
SA.No.1065 of 2009
property. Therefore, even otherwise there is no foundation to sustain their claim for easement by necessity. Therefore, this Court is of the firm view that though the learned counsel for the appellant has put forth certain contention to formulate a probable, alternative view, that cannot be a reason to interfere with the well considered finding of the Court below unless there is a perversity in the judgment. While perusing the judgment of the Court below, this Court could not find any perversity and also could not find any substantial question of law.
order as to costs.
08.04.2024
kmi
Index : yes/no
Speaking/Non Speaking Order Neutral Citation Case: Yes/No
To
C.KUMARAPPAN, J
kmi
SA.No.1065 of 2009
S.A.No.1065 of 2009
08.04.2024
3 issues framed by the court
Did the plaintiff prove an easementary right by prescription over the B schedule passage through over 20 years' continuous use?
Was there a foundation in the plaint for a claim of easement by necessity?
Were the concurrent findings of the courts below perverse, warranting interference under Section 100 CPC?
1 provisions across 1 enactments
Ramasamy Kounder
Allimuthu
Kannan
Malliyammal
C.Kumarappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
