High Court · 2025

S.A. No. 750 of 2013IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.03.2025CORAMTHE HONOURABLE MRS. JUSTICE R. KALAIMATHIS.A.No. 750 of 2013andM.P.No.1 of 2013---1.Perumal Goundar2.Saroja3.Mani... Appellants / Defendants Vs.K.N. Muruganantham... Respondent / PlaintiffPrayer: This Second Appeal has been filed under Section 100 of the Code of Civil Procedure, praying to set aside the judgment and decree dated 18.10.2010 passed by the II Additional Subordinate Judge, Salem, made in A.S.No. 46 of 2010 confirming the judgment and decree dated 17.02.2010 passed by the I Additional District Munsif, Salem, in O.S.No. 822 of 2007.For Appellants:Mr.T.S.VijayaraghavanFor Respondent:Mr.P. JagadeesanJUDGMENTThe Second Appeal has been preferred by the defendants in the suit against the judgment and decree dated 18.10.2010 passed in A.S.No. 46 of 2010 by the II Additional Subordinate Judge, Salem.Page Nos.1/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 20132. The parties are indicated herein as per their litigative status and their ranking before the trial Court.3. Heard the arguments of Mr.T.S.Vijayaraghavan, learned Counsel for the appellants/defendants and the arguments of Mr.P.Jagadeesan, learned Counsel for the respondent/plaintiff.4. According to the plaintiff, the properties mentioned in the suit schedule and the remaining portion in Punjai Survey No.166/2B, hectare 0.79.5 situate at Jagirammapalayam belonged to one Kandthayee Ammal by way of registered sale deed dated 05.05.1975. Since then Kandayee Ammal had been in possession and enjoyment of the said properties. On 19.11.2003, the said Kandayee Ammal executed registered settlement deed in favour of her son, Govindaraj, as regards, the suit properties. The Settlor placed him in possession of the said properties and the same was accepted and acted upon by the said Govindaraj by taking possession and by paying kists. The said Govindaraj sold the suit properties to the plaintiff under the sale deed dated 13.09.2006. Upon purchase, the plaintiff took possession of the suit properties. Page Nos.2/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 20134.1. While so, Kandayee Ammal formed a road on the north of the Panchayat Road with a breadh of 15 links. The road branches at point AA1, proceeds towards south, takes a turn at the point BB1 and proceeds towards east and it ends at the odai at the point CC1. The road is running along the western border of Kandayee Ammal's land comprised in Survey No.166/26 between the points AA1 and BB1. From the point BB1 it goes to CC1 (from west to east) and in the middle of Survey No. 166/2B, the land of Kandayee Ammal lies on the north. There is no other road leading to the Kandayee Ammal's land in Survey Nos.166/2B and 166/2A. The plaintiff's land is in two blocks, one on the north of the road and the other on the south of the road. The defendants got disgruntled due to the purchase of the suit properties by the plaintiff from Govindaraj, on 30.06.2007, attempted to prevent the plaintiff from taking tractor for ploughing the suit property. Hence the suit.5. Per contra, the defendants would inter-alia contend that after the demise of Mariappan, S/o.Kandayee Ammal, his wife for herself and on behalf of her minor sons, the first defendant Perumal Gounder and the said Govindaraj entered into a pathway agreement on 01.01.2006. As per the said pathway agreement it was specifically agreed that the properties Page Nos.3/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013given to them under the Will or Settlement should not be alienated to third parties without consent of the other brothers. Therefore, the third parties will have no right over the said pathway.6. When the son of Kandayee Ammal–Govindaraj sold the property, he did not inform about the said pathway agreement to the defendants. The pathway right is not available to the plaintiff as per the above stated pathway agreement dated 01.01.2006.7. Based on the divergent pleadings, the learned trial Court framed the relevant issues. At trial, to substantiate the plaint details, on the plaintiff's side, two witnesses – the plaintiff K.N.Muruganantham, and his vendor Govindaraj were examined as PW1 and PW2 and five documents were marked. Ex.A1 dated 13.09.2006 is the registered sale deed executed by Govindaraj and his children in favour of the plaintiff in respect of the suit property. Transfer of Patta dated 05.04.2007 is Ex.A3. On the side of the defendants, the 1st defendant, Perumal Gounder and one Murugesan were examined as DW1 and DW2. Ex.B1 dated 01.01.2006 is the pathway agreement executed between Perumal Goundar and five others.Page Nos.4/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 20138. The trial Court upon consideration of oral and documentary evidence and after hearing the arguments advanced by the counsels on either side, has observed that the said pathway is available to Govindaraj and he has conveyed 1/3rd pathway right to the plaintiff and as the plaintiff has purchased the suit property along with 1/3rd pathway right and decreed the suit in favour of the plaintiff. 9. Aggrieved the defendants preferred Appeal before II Additional Sub-Court, Salem. The first Appellate Court upon consideration of the entire case records and upon hearing the arguments advanced by the learned counsels on either side, has held that as per Ex.A1 sale deed, the pathway right of his vendor, namely, Govindaraj has been conveyed under Ex.A1 and dismissed the Appeal Suit by confirming the judgment and decree of the Trial Court. Against the concurrent findings of the Courts' below, the defendants are before this Court by way of filing the Second Appeal. 10. Aggrieved by the same, the defendants have preferred the present Second Appeal against the judgment and decree of the First Appellate Court passed in A.S.No. 46 of 2010.Page Nos.5/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 201311. The sum and substance of the plaintiff's case is that the suit property originally belonged to Kandayee Ammal and she settled the suit property along with pathway right in favour of her son, namely, Govindaraj as per the Ex.A2 settlement deed. The said settlement deed was accepted and acted upon and the settlee was in a possession and enjoyment of the suit property. The same was sold to the plaintiff by Govindaraj herein under Ex.A1. The 1/3rd share in the pathway is sought to be disturbed by the defendants and in order to protect his rights in the pathway, the plaintiff laid the suit as mentioned supra. 12. The contention of the defendants is that, as regards, the pathway, they have executed pathway agreement on 01.01.2006 under Ex.B1.13. The plaintiff has examined himself as PW1. He filed his proof affidavit in line with the plaint details. His vendor PW2 has denied the execution of Ex.B1 pathway agreement dated 01.01.2006. As per Section 101 of the Indian Evidence Act, one who pleads has to prove and in respect of Ex.B1 burden lies upon the defendants to prove the same. Page Nos.6/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013The defendants did not take any steps to send the document to the Forensic Department to obtain opinion of the Handwriting Expert.14. Admittedly, sale deed was executed by Govindaraj (PW2) in favour of the plaintiff along with cart-track right. Suit property, cart-track starts at the point AA1 proceeds towards south takes a turn and proceeds towards east and ends at the point CC1 as shown in the plaint rough plan. The recitals in Ex.A1 sale deed are runs as follows:''... fhe;jhak;khs; mth;fshy; 15 yp';f;!; mfyj;jpy; bjd;tlyhf bjd;g[wkhf cz;zhkiy epyk; tiuapy; tplg;gl;L tz;o ghij epyk; Vf;fh; 0.10 brz;l; epyj;jpy; 3y; 1 g';F ghj;jpaKk; kw;Wk; ghijia bghJthf gad;gLj;jpf;bfhs;Sk; ghj;jpaKk; cs;gl///''15. Ex.A2 settlement deed dated 19.11.2003 contains the above said details regarding cart-track. Plaintiff has examined his vendor Govindaraj as PW2.16. It is interesting to note that the defendants would put-forth that a pathway agreement has been executed between the defendants and PW2 Govindaraj on 01.01.2006. In this regard, attestor to Ex.B1 agreement has been examined as DW2. But DW2 has denied the Page Nos.7/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013execution of the said agreement. The Covenant attached with Ex.A2 settlement deed is cart-track right. While alienating the land to the plaintiff, the vendor Govindaraj has also conveyed the cart-track right attached to the said land. Kanthayee's son, Mariappan's wife Perumayee have affixed their thumb impression in Ex.A1 sale deed and another signatory is 1st defendant Perumal Gounder. In the cart-track agreement, there is no mention about the scribe's name. The said agreement was not registered. For these reasons, Ex.B1 was out rightly rejected by both the trial Court and the First Appellate Court.17. DW2 would depose that dispute arose among the parties on 01.01.2006 with regard to the alienation of properties to the plaintiff by the vendor Govindaraj. Thereafter, panchayat was held and muchalika came to be executed in the presence of 20 panchayatars. A serious doubt arises as to the veracity of Ex.A1 for the reason that had it been true as stated by DW2-Murugesan, the vendor Govindaraj having received the sale consideration would not have subscribed his thumb impression in the agreement/Ex.B1. More so, evidence of DW1 (1st defendant) is contra to the details of the written statement.18. It is also pertinent to note that DW1 during his cross-Page Nos.8/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013examination has stated that the plaintiff was prevented by him from using the suit cart track and upon complaint by the plaintiff, an enquiry was made by the Police. This necessitated the plaintiff to lay the suit against the defendants for the relief of declaration and permanent injunction in respect of cart track.19. Plaintiff has established his case to the effect that along with suit cart-track the suit property was purchased by him and it is the evidence of DW2 that he is the person who laid the suit cart-track and that is the only way to reach Ex.A1 property. The execution of settlement deed (Ex.A2) by Kandayee Ammal is not in dispute. It has been accepted and acted upon by the settlee Govindaraj and he has sold the land settled under Ex.A2 to the plaintiff along with the cart-track right. So based on the evidence of PW1, PW2 and DW2, the case of the plaintiff is clearly established.20. For these solid reasons, both the Trial Court and the First Appellate Court have not accepted the contention of the defendants. Pathway right in Ex.A2 settlement deed executed by Kandayee Ammal in favour of his son Govindaraj, 1/3rd pathway right was found and the same was rightly conveyed to the plaintiff under Ex.A1. As per Section 13 of the Page Nos.9/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013Easements Act, the pathway right enjoyed by the plaintiff’s predecessor in title, namely, Govindaraj, S/o.Kandayee Ammal, has been conveyed to the plaintiff herein under Ex.A1 sale deed and this Court does not find any perversity or infirmity in the findings of the learned First Appellate Court. This Court does not find any good reason on the findings of the First Appellate Court. No substantial question of law arise for consideration.21. With the aforestated discussions and observations, this Second Appeal stands dismissed. Sequel to this, the Judgment and Decree dated 18.10.2010 made in A.S.No.46 of 2010 on the file of II Additional Sub-Court, Salem stands confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.26.03.2025MSMPage Nos.10/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013To1.The II Additional Subordinate Judge, Salem.2.The I Additional District Munsif, Salem. Page Nos.11/12 https://www.mhc.tn.gov.in/judis S.A. No. 750 of 2013R. KALAIMATHI, J.,MSMS.A.No. 750 of 2013andM.P.No.1 of 201326.03.2025Page Nos.12/12