Madrasreserved High Court · 2025

SA No. 224 of 20095. Rajaiya S/o.Pannamuthu Nadar, Residing At 59, Gandhi Road, Arakonam...Respondents / Defendants 2, 4 to 6 and 1st PlaintiffPRAYER : Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree in A.S.No.43 of 2002 on the file of Additional District and Sessions Judge, FTC - II, Ranipet dated 31.08.2004 against O.S.No.435 of 1986 on the file of the District Munsif Court, Sholinghur dated 29.07.1994. For Appellant :M/s.V. SrimathiFor Respondents :M/s P.Suresh Babu For R1JUDGMENTThis Second Appeal has been filed challenging the Judgment and Decree in A.S.No.43 of 2002 on the file of Additional District and Sessions Judge, FTC - II, Ranipet dated 31.08.2004 against O.S.No.435 of 1986 on the file of the District Munsif Court, Sholinghur dated 29.07.1994. 2. Heard Mrs.V.Srimathi, learned counsel for the appellant and Mr. P.Suresh Babu, learned counsel for R1 and perused the materials available on record. __________Page 2 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 20093. The averments pleaded in the plaint in brief:The first plaintiff was the absolute owner of 'A' schedule property by way of purchase from the defendants under the registered sale deed dated 09.06.1964. The first plaintiff was in enjoyment of the 'A' schedule property. 'B' schedule property was a common battai (pathway) and the first plaintiff was enjoying the common battai from the date of purchase without any interruption. The said battai was in existence even prior to his purchase. In the sale deed dated 09.06.1964 also battai was also shown as one of the boundaries of the properties purchased by the first plaintiff which was comprised in 'A' schedule property and the battai starts from Arakkonam to Tiruttani Road. As the first plaintiff had been in enjoyment of the said battai for more than the statutory period, he has perfected his right over 'B' schedule property by way of necessary easement and prescription. 3.1. The defendants were in no way connected with the 'C' schedule property. The defendants were trying to interfere with the peaceful enjoyment of the first plaintiff in 'B' and 'C' schedule property by questioning the enjoyment of the first plaintiff's right over 'B' schedule property. Hence, the suit has been filed to declare that the plaintiffs have got right over the 'B' schedule __________Page 3 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009property as common battai to reach the 'A' schedule property and consequential injunction restraining the defendants 1,3,4 to 6 from interfering with the plaintiffs' right of way over the 'B' schedule property. 4. The averments pleaded in the written statement filed by the defendants in brief:It is false to state that 'B' schedule property is a common battai. It is also false to state that the first plaintiff has easement of necessity and he has prescribed any right over the 'B' schedule property more than the statutory period. No right of way was granted to the first plaintiff in respect of 'B' schedule property. The first plaintiff was entitled only to the property sold to him under 'A' schedule within the specific boundaries. The defendants have right of ownership of 'B' schedule property. When they do not have the necessity to use the battai, they used the said battai for cultivation. The first plaintiff has to reach the lands through the ridges as how others have established in their respective lands. The plaintiffs have claimed false right of way over the 'B' schedule property. Hence, the suit should be dismissed. 5. 'A' schedule property was sold by the first defendant to the first plaintiff through a registered sale deed dated 09.06.1964. The first plaintiff sold __________Page 4 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009'A' schedule property to the second plaintiff through a sale deed in the year 1991. Later the second plaintiff has been impleaded in the suit.6. On the basis of the above pleadings, the Trial Court has framed the following issues : "(i) Whether the plaintiffs are entitled to any easementary right over 'B' schedule property?(ii) Whether the 'B' schedule property is a common battai?(iii) Whether the plaintiffs are entitled for any injunction?(iv) To what relief?" 7. During the course of the trial, on the side of the plaintiffs, three witnesses have been examined as P.W.1 to P.W.3 and Exhibits A1 to A10 were marked. On the side of the defendants, one witness was examined as D.W.1 and Exhibits B1 to B26 were marked. The Commissioner's report and sketch have been marked as Exs.C1 & C2 and Arakkonam Assistant District Land Surveyor's report has been marked as Ex.C3. __________Page 5 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 20098. The Trial Court upon appreciation of the oral, documentary evidence and the submissions of the learned counsels for either side, has partly dismissed the suit as regards the relief claimed in respect of 'B' schedule property and partly decreed the suit in respect of permanent injunction in respect of 'C' schedule property. Challenging the said judgment, the second plaintiff has preferred a First Appeal in A.S.No.43 of 2002. The First Appeal was also dismissed by confirming the judgment of the Trial Court. Aggrieved over that, the present Second Appeal has been preferred. 9. The Second Appeal has been admitted for the following substantial questions of law:"(i) Whether the grantor could deny the grantee the benefit of grant?(ii) When the pathway is shown as a boundary in the sale deed, would it not partake the character of a grant?(iii) Whether the findings of the Courts of the Trial Court as well as the Appellate Court are not against the reported decision of this Court in AIR 1924 MAD 834?"10. The learned counsel for the appellant / second plaintiff submitted that the effect of describing a boundary as pathway is only to make it clear that the purchaser can use it as a way of right. This common battai is the only way __________Page 6 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009available for the appellant / second plaintiff to have access to the suit property and it is one of the necessity and grant for convenient enjoyment of the property. The findings of the Court that the plaintiffs had not purchased the portion of the battai is on a misplaced understanding of the nature of the property. The judgments of the Courts below are against the judgments of this Court reported in AIR 1924 MAD 834, AIR 1972 MAD 307 and 1997 III CTCT 461. 11. The learned counsel for the first respondent submitted that the 'B' schedule property has been used as common battai to reach the 'A' schedule property. It is not a Government Poramboke land and it is an absolute property belonged to the family members of the respondents. No third person can have the right over the 'B' schedule property. The suit 'B' schedule property is 19 feet breadth long pathway and is extended on the eastern side of the plaintiffs' 'A' schedule property to Arakkonam - Tiruttani Road and it is 4 feet elevated than the 'A' schedule property which is absolutely belonged to the defendants and their family members and the same has been used as common battai to reach their land. The first defendant had sold a part of the land in 'B' schedule property to other third persons in the year 1964, 1977 and 1984 through Exhibits B1 to B3. __________Page 7 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 200912. The learned counsel for the first respondent further submitted that the revenue records for the 'B' schedule property stood in the name of the first defendant. The Advocate Commissioner's report has been marked as Ex.C1 and C2. The Surveyor Sketch which has been marked as Ex.C3, would also show that the suit property belonged to the defendants. The battai lands have been sold by the defendants to various third persons as house plots. The appellant herein has not proved that she used only the 'B' schedule property to reach 'A' schedule property. The appellant used her own ridges to walk through to reach 'A' schedule property. There is no easement of necessity is available to the appellant. The appellant has not proved that there existed a common battai to reach and she has a right of access and that was only the available pathway to her. Hence, the Second Appeal should be dismissed. Discussion :13. The first plaintiff was the original owner of the 'A' schedule property. 'A' schedule property has been sold to the first plaintiff vide sale deed dated 09.06.1964 and the eastern boundary of the said property was sold to the first plaintiff under the sale deed dated 09.06.1964 and has been shown as common battai. The above facts were not denied by both sides. The appellant claims that the very mentioning of the common battai as one of the boundaries in the sale __________Page 8 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009deed itself is sufficient for her to use the above portion as a common pathway. The appellant cannot have any right to obstruct the respondents' access in the said property. However, the defendants have claimed that there is no common battai on the site which is allowed to be enjoyed by the third parties like the second plaintiff. The said portion which measures nearly 59 cents (S.No.3/5 - 35 cents and S.No.35/3D - 24 cents) have been utilized by the family members of the defendants for the purpose of their own enjoyment and no the third party can claim any right over the same. 14. However, it is the contention of the learned counsel for the appellant that mere description that the property sold to the appellant is abutting the pathway itself is sufficient to constitute a right of pathway in favour of the appellant. In support of the above contention, reliance was placed on the judgment of this Court held in the case of Kuppakkal Vs. Mathan Chettiar and Ors, reported in AIR 1924 MAD 834. 15. On perusal of the facts involved in the above case (Kuppakkal Vs. Mathan Chettiar and Ors), it is seen that the defendant of that suit had got a lease hold right over the property abutting the property meant to use as streets. As the Court has found that the defendant's land comprised in the site of one of __________Page 9 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009the proposed new streets, it is held that the defendant has got no right to raise wall by including the street and thereby obstructing the defendant's free movement over the same. 16. But the contention of the defendants in the suit on hand is that the property sold to first plaintiff under 'A' schedule property is not a property having pathway right on its east over the battai. It is claimed that the battai has been used by the family members of the defendants for their own purpose and every land owner has got the right to their own lands by forming ridges. The Advocate Commissioner has been appointed in order to note down the physical features of the property and file a report with the sketch and surveyor's plan. The report of the Commissioner and the sketch and surveyor's reply would show that 'A' schedule property and 'B' schedule property are not lying at a same level on the ground and the 'B' schedule property is situated at 4 feet elevated than the ground level of 'A' schedule property. 17. Admittedly, the sale deed of the first plaintiff does not have the recitals that the sale is inclusive of right of pathway on 'B' schedule property. Had 'B' schedule property been a public road or portion of that property was kept for forming a street in view of any layout approval obtained by the first __________Page 10 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009defendant, the first plaintiff could have the right of access over 'B' schedule property irrespective of the exclusive grant mentioned in the sale deed. The appellant has not produced any record to show that 'B' schedule property has been used as a public pathway or her vendors have donated the above land to the village or local administration for the purpose of forming the pathway therein. 18. The property involved in 'B' schedule property is not a few cents or 3 to 4 feet wide, but, it is substantial extent of 59 cents situated in S.Nos.3/5 - 35/3D. When the lands were vacant, it could have been possible for the adjacent land owners to walk on the same until directions were made regarding the said portions. The first respondent / second defendant has stated that the above 59 cents in the 'B' schedule property has been sold to third persons as house plots, as the portion had been used only by the family members for their convenience and enjoyment of their properties. Hence, when the first respondent by her action, had established that the defendants have considered the 'B' schedule property only as their own land despite its being used as a pathway for family members, the burden lies on the first plaintiff and thereafter his purchaser, the second plaintiff (appellant herein), to prove that the 'B' __________Page 11 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009schedule property has been set apart only as a pathway and that the first respondent cannot claim to be in exclusive enjoyment of the same. 19. Even in the absence of express grant in the document, the pathway right can still be presumed, if that portion of the land is the only available land for access of the appellant to reach Arakkonam - Tiruttani Road. The other land owners have formed ridges on their own lands and walked through the same to reach the main road. So, it is possible for the appellant to create ridges on her own property in order to reach the main road. When the elevation of 'A' and 'B' schedule property is also not seen to be equal on the ground and 'B' schedule property is 4 feet higher than the 'A' schedule property, the appellant cannot equate herself with the defendant of the case of Kuppakkal Vs. Mathan Chettiar and Ors reported in AIR 1924 MAD 834. 20. There cannot be any quarrel that a person who has purchased the property in a particular street has got the right to access at every point facing the street. But when a person's land is abutting another person's property which is at four feet elevated height, it cannot be claimed that the elevated property should be considered as a property having easementary right for the adjacent owners, just because it has been mentioned as boundary in their title deeds. __________Page 12 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009Hence, the preposition laid down by the learned counsel for the appellant is distinguishable on facts, especially, with reference to the case in hand. 21. Admittedly, the appellant did not purchase any portion in the 'B' schedule property for the pathway nor the character of 'B' schedule property remained as a common pathway for allowing the third parties to have access through the same. The appellant has not established that she did not have any right of pathway except through 'B' schedule property and the easement of necessity also not proved. In such circumstances, the grant cannot be presumed in pursuant to the boundary alone. 22. As per section 28 of easement Act, an easement of necessity is co-extensive with the necessity as it existed when the easement was imposed. Though the appellant has claimed that 'B' schedule property has been used as a pathway for more than the statutory period, that too, out of necessity, the same has not been established. Even the physical features of 'B' schedule property also is not compatible to the claim made by the appellant. The appellant has not established neither easement of necessity nor easement of grant either expressed or implied as claimed by her, though there are boundary details with regard to 'B' schedule property describing it as common battai. The said __________Page 13 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009common battai was used among the members of the defendants' family and the same was not shared with the third parties. 23. Even in Ex.A1, the width of the common battai has been shown as 19 feet. Such a wide part of the land measuring 59 cents would not be left by a land owner to the adjacent owner, even if it is presumed to be an easement of necessity. As the 'B' schedule property is not a poramboke land and it has been used as a common battai among the family members of the defendants for their own convenience, mere mentioning of the same as the boundary of the first plaintiff's sale deed Ex.A1 cannot presume or confirm an easementary right over the same in favour of the first plaintiff or his successors in title. 24. The Courts below have rightly distinguished the factual situation from the facts of the case in Kuppakkal Vs. Mathan Chettiar and Ors cited in AIR 1924 MAD 834 and dismissed the relief of declaration and consequential permanent injunction in respect of 'B' schedule property. Hence, I do not find any valid reasons for interference. Hence, the Second Appeal is liable to be dismissed.__________Page 14 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 200925. In the result, this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 27-10-2025Index: Yes/NoSpeaking/Non-speaking orderNeutral Citation: Yes/NogskTo1. The Additional District and Sessions Judge, FTC - II, Ranipet. 2.The District Munsif Court, Sholinghur. 3. Mangayar ThilagamD/o.Ramakrishna Reddy, 12, Munusmay Street, Gandhi Nagar, Arakonam4. RAJESWARIW/o.Late Rajagopal, 46, Vellair Cross Street, Jothi Nagar, Arakonam5. VIJAYABABU46, Vellair Cross Street, Jothi Nagar, Arakonam6. Minor MadhanMinor Rep.By Court Guardian, Thiruk.N.Arumugham, Advocate, Sholigur7. RAJAIYAS/o.Pannamuthu Nadar, Residing At 59, Gandhi Road, Arakonam__________Page 15 of 16 https://www.mhc.tn.gov.in/judis SA No. 224 of 2009DR.R.N.MANJULA, J.GSKSA No. 224 of 2009 andM.P.No.1 of 200927-10-2025__________Page 16 of 16