Second appeal by the plaintiff challenging concurrent decrees refusing a permanent injunction restraining interference with his use of a suit pathway. The High Court found the unregistered agreement unproved, enjoyment not established, an alternate access available, answered the substantial questions against him and dismissed the appeal.
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.No.867 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.02.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.867 of 2023 and C.M.P.No.27313 of 2023
Jagannathan
… Appellant
Vs .
1.Kulandaivelu 2.Pachiyappan 3.Saminathan
. . . Respondents
Prayer:- Second Appeal is filed under Section 100 of C.P.C to set 1/12
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aside the judgement and decree dated 20.10.2016 in OS No.163/2013 on the file of the District Munsif Court, Dharmapuri, as confirmed by the judgement and decree dated 30.08.2019 in AS No.33/2017 on the file of the Principal Subordinate Court, Dharmapuri.
For Appellant : M/s.D.Sivakumar
For Respondents : M/s.P.Ganesan [R.1 to R.3]
JUDGEMENT
The plaintiff is the appellant before this Court challenging the judgment and decree passed by the Principal Subordinate Court, Dharmapuri in A.S.No.33 of 2017 in and by which the learned Judge
has confirmed the judgment and decree of the District Munsif Court, Dharmapuri in O.S.No.163 of 2013. The facts are set out briefly herein below and the parties are referred to in the same ranking as before the Trial Court.
the file of the Additional District Munsif Court, Dharmapuri for a 2/12
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permanent injunction restraining the defendants from interfering with the plaintiff's usage of the suit pathway described as the 2nd item in the suit schedule to reach his property described as the 1st Item in the suit schedule.
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paying Rs.5,000/- to the father of the defendants and 10 others. The agreement in question is an unregistered one.
preventing the plaintiff from using the pathway. From 09.06.2013, the interference had been continuing and therefore, the plaintiff had come forward with the suit in question.
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which is situate in the defendants' land. The alleged agreement dated 20.03.1991 is a fraudulent document. The said document cannot be received in evidence as it is an unregistered document. Even as per the deed a sum of Rs.5,000/- had been allegedly paid to the defendant's father and others. That apart, the agreement has not been signed by all the persons. The plaintiff has also not impleaded the others who he claims have given him a right of way. The plaintiff has been accessing his lands directly from the main road and has never used the defendants' lands to access his lands. He has an alternate pathway. Therefore, they had sought for the dismissal of the suit.
1. Whether the plaintiff is entitled to the decree for permanent injunction?
2.Whether the plaintiff is in possession and enjoyment of the 2nd Item of the suit property?
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3.Whether the suit is bad for non-joinder of
necessary party?
4.To what other relief that the parties are entitled
to?
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"1. When materials are available to show the
existence of the suit cart track and that the suit cart track is
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the only access to the plaintiff's lands, are the courts below correct in law in refusing to grant a decree for permanent injunction to restrain the defendants from interfering with the plaintiff's usage of the suit B Schedule cart track?
2. When materials are available to show that the suit
cart track is used by other persons also to access their properties, are the courts below correct in law in dismissing the suit for permanent injunction, even though the defendants are openly opposing the usage of the suit cart track only so far as the plaintiff alone?
3. When the defendants have not denied the fact that
the suit B Schedule cart track is the only access to reach the plaintiff's lands, are the courts below correct in refusing to grant a decree for permanent injunction in favour of the plaintiff and against the defendants restraining them from preventing the usage of suit cart
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track by the plaintiff?
4. Are not the judgement and decree of the courts below vitiated for non- construction of the evidence available on record in their perspective?"
Admittedly, the value of the said agreement is Rs.5,000/- but however the document has not been registered. That apart, though the plaintiff has stated that the agreement has been entered into between himself, the defendant's father and 10 others, the agreement has not been signed by all the parties. Further, the other persons have not been made a party to the above suit. That apart, the plaintiff has not been able to establish his enjoyment of the 2nd Item of the suit property since the year 1991. It has also been proved that the plaintiff has an access to his property
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through another pathway.
13.02.2024
Index: Yes/No Speaking order/non-speaking order Neutral Citation: Yes/No shr
To
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P.T.ASHA, J.,
shr
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S.A.No.867 of 2023 and C.M.P.No.27313 of 2023
13.02.2024
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2 issues framed by the court
Whether the plaintiff proved the unregistered 1991 agreement and continuous use of the suit cart track to claim permanent injunction?
Whether the plaintiff was entitled to injunction despite having an alternate pathway to his lands?
1 provisions across 1 enactments
Jagannathan
Kulandaivelu
Pachiyappan
Saminathan
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
