Madrasdated High Court · 2025

SA.No.57 of 200614.Ganesan15.Vidhya (R12 died, R13 to R15 are brought on record as Lrs of the deceased R12 vide Court order dated 19.09.2025 made in C.M.P.Nos. 192,193 and 194 of 2012 in S.A.No.57 of 2006)...RespondentsPRAYER: Second Appeal filed under Section 100 of the CPC, against the judgement and decree of the learned Second Additional Subordinate Judge, Coimbatore dated 17.12.2002 in A.S.No.11 of 2002 confirming the judgment and decree of the learned Third Additional District Munsif, Coimbatore dated 12.07.2001 in O.S.No.1578 of 1988.For Appellants : Mr.K.Sivasubramanian for Mr.T.M.HariharanFor Respondents 1, 2,3&9 : Served - Not dispense with vide order date 19.09.2025For Respondents 4,7 & 8 : Ms.Elizabeth Ravi for Mr.P.Raja R5-Not ready in notice R13 and 15-Not ready in notice R6-Served-No Appearance R9-Served-No Appearance R10 & 11-Died. Steps due R12 – Died. Steps not taken R14-Dismissed as abated vide Court dated 30.01.2023. 2/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006 JUDGEMENTThe present Second Appeal arises against the judgment and decree of the II Additional Subordinate Judge, Coimbatore in A.S.No.11 of 2002 dated 17.12.2002, in confirming the judgment and decree of the III Additional District Munsif, Coimbatore in O.S.No.1578 of 1988 dated 12.07.2001.2. For the sake of convenience, the parties shall be referred to as per their ranking in the suit. O.S.No.1578 of 1988 was presented by four plaintiffs. The 1st plaintiff passed away and his legal heirs were impleaded as plaintiffs 5 to 7. Pending the suit, the 2nd defendant passed away and his legal heirs were impleaded as defendants 5 to 9. 3/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 20063. The case of the plaintiffs is that the plaintiffs 1, 3 and 4 are residents of Door Nos.179, 180, 190 and 191 of Maniam Velappagounder Street, K.K.Pudur. Coimbatore-38. The 2nd plaintiff was the owner of Door No. 181. Defendants 1 and 2 are their neighbours.4. According to the plaintiffs, Maniam Velappagounder Street is also known as 6th Street, which runs north-south. It commences from N.S.Ramasamy Iyengar Road, which runs east-west. From Maniam Velappagounder Street, there are connecting branch of roads which run from the internal roads. enabling the residents residing on the roads parallel to Maniam Velappagounder Street to traverse over the same and reach the main road.5.According to the plaintiffs, on the eastern side of the 1st and 2nd defendants' property Maniam Velappagounder Street is situated. They claimed that between the properties of the 1st and 2nd defendants, there was 10 feet wide access pathway for the plaintiffs to reach the 6th 4/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006Street from their property. They pleaded that the 1st defendant initially did not put up any construction over his land and therefore, there was no difficulty for the plaintiffs to traverse over the said land to reach 6th Street. However, the 2nd defendant started putting up construction over his land and thereby, encroached upon the 10 feet access road. Subsequently, the 1st defendant had started construction, thereby completely preventing the access of the plaintiffs from their property to the 6th Street. They pleaded that the measurements given in the sale deed of the 1st defendant were wrong and that the 1st defendant is not entitled to claim even an inch over the link road from their property onto the 6th Street. 6.Prior to the presentation of the plaint, the plaintiffs issued a notice on 27.05.1988 to the defendants 1 to 3. It was pleaded that the defendants 1 and 2 issued a reply which contained false details. The 3rd defendant did not issue a reply. Hence, they were constrained to file the suit for the following reliefs:-a) For a permanent injunction restraining the 1st defendant from proceeding further with the 5/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006construction in site No.83.b)For a mandatory injunction directing the removal of that portion of the basement on the north encroaching into the suit property within a time to be fixed by this Hon'ble Court.(c) Failing compliance permit the plaintiffs to remove it themselves or in execution and recover the costs from the defendants.(d) direct the second defendant to remove all the obstructions to the suit property South of the living portion of the second defendant within a time to be fixed by this Hon'ble Court.(e) failing compliance permit the plaintiff to remove it themselves in execution and recover the costs from the defendants.(f) directing the third defendant to provide a pucca access road about 10 feet broad running East to West between sites Nos: 82 and 83 belonging to defendants 1 and 2 and taking off from street No: 6 within a time to be fixed by this Hon'ble Court.(g) failing which permit the plaintiffs to lay the road and recover the costs from the third defendant;7.Summons were served on the defendants who filed a 6/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006detailed written statement. The 1st defendant denied the existence of any branch road or pathway between the houses of 1st and 2nd defendants. He pointed out that he had put up the construction within his property after obtaining prior sanction from the Coimbatore Municipal Corporation. He pointed out that after his purchase, he had not put up any construction. Taking advantage of the fact that the property remained open, the plaintiffs had been using the same. However, that would not give the plaintiffs any right to claim prescription. He pleaded that the officials of the Coimbatore City Municipal Corporation had inspected the property and had approved the plan. He added that he had put up the construction strictly in accordance with the plan and within the boundaries of his property. He pointed out the Revenue Department had granted patta to one, Muthammal, the 1st defendant's vendor, and in the assignment patta, the above four boundaries had been mentioned by the Tahsildar. Relying upon the said documents, he pleaded that to the north of his house was the property of the 2nd defendant. If at all there existed a road/ pathway, the Tahsildar would have specifically mentioned the same in the said document. 7/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 20068.The 1st defendant further added that there is a branch road from Maniam Velappagounder Street, about 400 meters south of the 1st defendant's house, and that this branch road starts about three or four houses south of the 1st defendant's house, and through this road, the plaintiffs can have access to Maniam Velappagounder Street. He pleaded that the plaintiffs have been using this branch road in order to have access to the main road, and denied the fact that there was any space enabling access between the properties of the 1st and 2nd defendants. 9.The 2nd defendant filed a more or less similar written statement. The 2nd defendant pleaded that the property of the 1st defendant is situated immediately to the south of his property and that it is false to plead that between the property of the 1st defendant and the 2nd defendant, there runs a 10 feet road. The 2nd defendant relied upon a patta granted to him in HSD.No.1019 of 1986 in 29612/76 of the year 1976. On the basis of this patta, he pleaded that the property with four boundaries mentioned by the Tahsildar, shows Muthammal's property 8/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006as his neighbour and that it does not mention any pathway between the two properties. He also enclosed a rough plan pointing out the access of the plaintiffs, through the 10 feet passage running in front of their house to Velappa Gounder Street. The said plan is scanned and extracted here under:-9/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 200610. On the basis of these pleadings, the learned trial judge framed the following issues. 1/ jhthtpy; nfhhpagof;F. braYWj;Jf;fl;lisg;“ ghpfhu';fSk;. epue;ju cWj;Jf; fl;lisg; ghpfhuKk; bgw thjpfs; mUfija[ilath;fsh>2/ ,ju ghpfhuk; vd;d>”11.The parties went into the witness box. On the side of the plaintiffs, the 3rd plaintiff, Ramasamy examined himself as P.W.1. One Balasubramaniam was examined as P.W2. On the side of the plaintiffs, Exs.A1 to A10 were marked. On the side of the defendants, the 9th defendant examined himself as D.W1. He marked Exhibits B1 to B 22.12. Pending the suit, an advocate commissioner was appointed. The advocate commissioner also submitted a report together with a plan. The same were marked as Exs.C1 and C2. 10/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 200613.On consideration of the oral and documentary evidences, the trial court came to a conclusion that the plaintiffs have not proved the existence of any road or lane between the properties of the 1st and 2nd defendants and consequently, dismissed the suit.14. Aggrieved by the same, the plaintiffs 2 to 4 preferred a regular appeal before the II Additional Subordinate Judge, Coimbatore. The learned first appellate judge framed the following issues for consideration.1/ 1 kw;Wk; 2 vjph;nky;KiwaPl;lhsh;fs;- 1. 2“ gpujpthjpfspd; brhj;jpw;F eLtpy; tHf;Fiuapy; Fwpg;gpl;Ls;sJ nghy; jhth ghij ,y;iyah>2/ jhth ghij kzpak; ntyg;g ft[z;lh; bjUt[f;F nkw;Fg; gf;fk; FoapUg;gth;fshy; ePz;lfhykhf gad;gLj;jg;gl;L te;Js;sjh>3/ ,e;j nkw;KiwPaL mDkjpf;fj;jf;fjh>”11/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 200615.After re-appreciating the entire evidence, the learned appellate judge came to a conclusion that the findings of the trial court did not require any interference and accordingly, dismissed the first appeal. Aggrieved by the concurrent findings, the plaintiffs are on appeal before this court.16.The second appeal was admitted on the following questions of law on 15.03.2006. “1. Whether on the finding that the trial court has failed to frame the proper issues for resolving the dispute between the parties, has not the appellate court misdirected itself in proceeding to dispose of the appeal when complicated questions of fats and law arise for decision between the parties and when the disputes cannot be effectively resolved without framing proper issues and finding being rendered on each of them? 2. Could not the relief to the plaintiffs be moulded taking into note the subsequent even proved by PW.2 especially Exs.A9 and A10 Survey record establish the existence of the suit passage? 3. When the specific relief is prayed against the 1st defendant and when the 3rd defendant does not file a 12/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006Written Statement and participate in the trial, is not the provisions of Order 8 Rule 10 attracted? 4. When the 1st defendant does not resist the claim of the plaintiffs have not the courts below erred in not granting a relief against the 1st defendant and his alienee pending the suit the 4th defendant.” 17. Pending the second appeal, the 2nd plaintiff passed away and his legal heirs were impleaded as appellants 3 to 5.18. I have heard Mr.M.Sivasubramanian for Mr.T.M.Hariharan for the appellants and Ms.Elizabeth Rani for Mr.P.Raja for the respondents.19. As all the substantial questions of law are interlinked, they are heard together and disposed of by this common judgment.20. Mr.M.Sivasubramanian, relying upon Exs.A9 and A10 which are the A register and FMB sketch copies, respectively, pointed out that 13/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006a perusal of these documents would show that there exists a “eilghij” in Town Survey No.307 (part), to an extent of 30 sq.meters and it is this property, which is the suit schedule mentioned property. He also pointed out from the plan under Ex.A10, that T.S.No.44 of Block 9, is shown as a vacant land, and this is the suit schedule mentioned property. He states that as the revenue records reflect the existence of the pathway, the trial Court as well as the lower appellate Court erred in not appreciating these documents and dismissing the suit. 21. Ms.Elizabeth Ravi, invites my attention to Ex.B5-the Assignment patta that had been given to Nachi Konar, the 2nd defendant. She points out that the assignment deed does not show the existence of any pathway, as is clear from the Namuna document. She also relied upon Exs.C1 and C2 namely, the Advocate Commissioner's report and plan, in order to point out that the Advocate Commissioner, who had visited the site, did not report the existence of any pathway. She states that none of the questions of law arise for consideration and hence, pleads that the appeal be dismissed, confirming the judgement and decree of the courts below. 14/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 200622.Insofar as the plea of Mr. Sivasubramanian, that the learned trial Judge has not framed any proper issues is concerned, I only have to refer to Order 14 Rule 1 of the code of Civil Procedure. As elucidated in the provision, a court is called upon to frame an issue, either on a material proposition of fact or law, which is affirmed by one party and denied by the other. The issue that has been framed by the trial court has been extracted above. The material proposition which the Court had to answer was, whether there existed a pathway between the properties of the 1st and 2nd defendants. The learned trial Judge, did, in fact, frame this very issue (issue No.1) and therefore, this question of law need not detain us any longer. 23.Insofar as the plea under Exs.A9 and 10 is concerned, I have gone through the original of both the documents. These documents have come into force nearly a decade after the presentation of the suit. They are post litem motam documents. Furthermore, in both documents, the endorsement that has been made by the Assistant 15/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006Director of Town Survey, Coimbatore, states that the “land survey is not finalized”. In both these documents, the authority has been conscious enough to make this endorsement. 24.It is appropriate to refer to the plan annexed to the assignment patta. It does not show the existence of any pathway on the property. While assigning the land, if the Tahsildar had, in fact, noticed a pathway between the properties of defendants 1 and 2, then he would have certainly made an endorsement to that effect. Apart from that, a condition would have been imposed in the assignment patta, stating that the pathway set apart, should not be encroached upon, by the assignee. That not having been found in the assignment deed, the trial Court, as well as the lower appellate Court, had safely concluded that the plea of the plaintiffs is a fictitious one.25.Furthermore, the trial Court had appointed an Advocate Commissioner who had also visited the site, and has come to a conclusion that there does not exist any pathway as pleaded by the 16/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006plaintiffs. The plaintiffs have not even taken the pain to examine the Advocate Commissioner by calling him to the witness box and cross examining him on the said report, in terms of Order 26 Rule 10(2) of Code of Civil Procedure. The report together with the plan of the Advocate Commissioner forms part of the evidence in the suit. The plaintiffs having miserably failed to prove the existence of the pathway, I do not find any error in the judgement of the trial Court, as well as, the lower appellate Court. None of the questions of law presented by the plaintiffs before this Court for answer arise for consideration in the appeal. In conclusion, the Second Appeal is dismissed with costs. Consequently, the connected Miscellaneous Petition is closed.14.10.2025 Index: Yes/NoInternet: Yes/NoNeutral Citation :Yes/NosrnTo1. The II Additional Subordinate Judge, Coimbatore2. The III Additional District Munsif, Coimbatore 17/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 200618/19 https://www.mhc.tn.gov.in/judis SA.No.57 of 2006V.LAKSHMINARAYANAN. J, srnSA.No.57 of 2006and C.M.P.No.1117 of 200614.10.202519/19