Second appeal by the second defendant challenging concurrent decrees for declaration and permanent injunction restraining his claimed passage over the plaintiff's land. The court found no perversity in the concurrent factual findings that no passage existed and answered the substantial questions of law against the appellant.
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.
SA.No.1459 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.04.2024
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.1459 of 2010
... Appellants
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree dated 04.03.2010 made in A.S.No.73/1991 on the file of the Subordinate Judge, Ariyalur confirming the judgment and decree dated 23.06.1987 made in O.S.No.119 of 1983 on the file of the District Munsif, Ariyalur.
For Appellants : Mr.M.Sriram For Respondents : Mr.P.Dinesh Kumar *****
SA.No.1459 of 2010
J U D G M E N T
The 2nd defendant is the appellant herein. The plaintiff has been figured as the 1st respondent, and the first defendant has been arrayed as 2nd
respondent in this Second Appeal.
SA.No.1459 of 2010
the Second Appeal. According to the statement of the 2nd defendant, he disputed the description of property and he also denied that that his northern boundary is his east-west wall. It is the submission of this defendant that on the northern side to their wall, they have got passage to reach the western side property. It was also the contention of the first defendant that there was no fencing on A B C D portions. It is the submission of this defendant that Olungai measuring 10 feet in breadth runs east-west through out and the same is in existence for more than 18 years and before that, the same was in existence on the northern side for more than 30 years. Therefore, this defendant submits that if the decree is granted, then the defendant will become land locked and he will not be in a position to reach his land. Therefore, he prayed to dismiss the suit.
SA.No.1459 of 2010
Olungai on the southern side of the suit property, therefore, ultimately decreed the suit as prayed for. The 1st defendant, who has also suffered a decree has not preferred any appeal. However, the 2nd defendant has instituted the First Appeal before the First Appellate Court. But, the First Appellate Court, on re-appreciation of evidence, has concurred with the finding of the Trial Court and dismissed the First Appeal. Not satisfying with the order of the First Appellate Court, the 2nd defendant is before this Court by way of the instant Second Appeal.
the following substantial question of law:-
“ 1. Whether the Lower Appellate Court is justified in dismissing the appeal when all the oral and documentary evidences and the Commissioner's plan clearly established the existence of the said passage?
2. Whether the Courts below are justified in not considering the principles laid down in easement of necessity under Section 13 of The Indian Easements Act, 1882?
3. Whether the Court below are justified in negativing the claim of the appellant when the said passage is in long and continuous enjoyment as an easementary right for more than the statutory period prescribed under the Act?
SA.No.1459 of 2010
4. Whether the Courts below are justified in not considering the doctrine of lost grant and the appellant had acquired the right of easement by prescription?”
vehemently contend that, this defendant disputed the plaintiff's title over the property and even according to the admission made by the plaintiff, he was not very much confident about the description mentioned in Ex.A2-Sale Deed, which is the main document for the plaintiff. It was also the submission of the learned counsel for the appellant that by examining DW2 and DW3, he has established the existence of passage on the northern side of his property. It was also the contention of the learned counsel that the plaintiff has not at all established his right before the Court. Hence, he prayed to allow this appeal, thereby dismissing the suit.
SA.No.1459 of 2010
panchayat during 1984 and only in that panchayat, the passage was laid on the northern side of the 2nd defendant's property, whereas the suit has been filed during 1983. It was also the contention of the learned counsel for the plaintiff/first respondent that according to the sale deed of the first defendant, whose property situates on the northern side of the plaintiff's property, has clearly referred the southern boundary as the plaintiff's property. Therefore, only based upon the evidence available before the Court, the Trial Court as well as the First Appellate Court have arrived at a finding in favour of the plaintiff. Therefore, there is no perversity in the judgment of the First Appellate Court. Hence, the learned counsel would submit that unless there is a perversity in the order, while exercising jurisdiction under Section 100 of CPC, this Court cannot interfere with the order of the Courts below.
SA.No.1459 of 2010
case, his entire remaining land will be landlocked. Therefore, from the submissions of the learned counsel for the appellant, what is essential to be considered is, whether is there any common passage between the plaintiff's property and respondent's property.
SA.No.1459 of 2010
that the plaintiff is entitled for a decree of declaration and permanent injunction. From the submissions made by the learned counsel for the appellants, this Court could not find any perversity and also could not find any justifiable ground.
order as to costs.
17.04.2024
kmi
Index : yes/no
Speaking/Non Speaking Order
Neutral Citation Case: Yes/No
To
C.KUMARAPPAN, J
SA.No.1459 of 2010
kmi
S.A.No.1459 of 2010
17.04.2024
2 issues framed by the court
Whether the courts below erred in rejecting the defendant's claim of a passage/easement over the plaintiff's suit property.
Whether the first appellate court's concurrent findings on the non-existence of the passage were perverse so as to warrant interference under Section 100 CPC.
2 provisions across 2 enactments
Rajamanickam (Died)
R.Rajendran
R.Subramanian
Kaliaperumal
Rajangam
C.Kumarappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
