Madrasdated High Court · 2025

S.A.No.903 of 2019JUDGMENTThe appellants are the plaintiffs in O.S.No.1780/2011 on the file of the V Assistant Judge, City Civil Court, Chennai. The appellants / plaintiffs filed the suit for a (a) declaration that the wall put up by the defendant across the common passage in Survey number 348/1 is illegal.(b) Mandatory injunction directing the defendant to demolish the said compound wall put-up by the defendant.(c) Permanent injunction restraining the defendant from putting up any construction in the common passage which leads to Perumal Koil Mada Street, Villivakkam, Chennai.2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.3.The case of the plaintiffs in a nutshell is as follows :The plaintiffs are the absolute owners of the property in Survey number 348/1 and door number 123/46, Perumal Koil South Mada Street, Page 2 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019Villivakkam, Chennai 600 049. The defendant's house is situate on the northern side of the plaintiffs' house. There is a common passage measuring 6 feet in Survey number 348/1 on the eastern side of the plaintiffs and the defendant's house. The plaintiffs have been using the said passage ever since the date of purchase of their property. The defendant who is the adjacent land owner had put up a wall across the common passage, thereby preventing the plaintiffs from using the pathway. Hence the suit.4. The suit was resisted by the defendant on the following grounds:i.The defendant has title in respect of 6 feet wide common passage which is on the eastern side of her property. Therefore, the plaintiffs cannot claim any right over the said passage.ii.The plaintiffs have not adduced any evidence to show that they have been using the common passage ever since the date of purchase of their property.Page 3 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 20195. On the basis of the above pleadings, the trial Court framed the following issues:1)"Whether the plaintiffs are entitled for a declaration as prayed for by them?2)Whether the plaintiffs are entitled for a mandatory injunction as prayed for?3)Whether the plaintiffs are entitled for a permanent injunction as prayed for?4)To what relief the plaintiffs are entitled?6. The plaintiffs 1 and 2 examined themselves and marked Ex.A1 to Ex.A18. The defendant examined herself and marked Ex.B1.7. The learned trial court judge, on considering the evidence on record, decreed the suit, vide her decree and judgment dated 09.02.2016 on the following grounds:i.The plaintiffs have adduced sufficient documentary evidence to show that they have been using the common passage on the eastern Page 4 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019side of their property.ii.On the other hand, the defendant had not adduced any documentary evidence to show that she has exclusive right over the common passage measuring 5 x 135 feet.iii.The defendant had relied on the General Power of Attorney (Ex.B1) allegedly executed by one C.K.Gopalakrishnan who is one of the sharers of the previous owners of the properties.iv.However, the defendant had not proved that the said C.K.Gopalakrishnan has exclusive right over the common passage.8. Aggrieved over the decree and judgment passed by the trial court judge, the defendant filed an appeal in A.S.No.138/2016 before the VI Additional Judge, City Civil Court, Chennai. The learned VI Additional Judge, City Civil Court, Chennai, after analysing the oral and documentary evidence on record, reversed the findings of the learned trial Court Judge and dismissed the suit, vide his decree and judgment dated 29.10.2018 on the following grounds: Page 5 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019i.The Advocate Commissioner in his report had categorically stated that there is a separate passage for the plaintiffs to reach Perumal Koil South Mada Street, Villivakkam.ii.The common passage in S.No.348/1 is in exclusive enjoyment of the defendant.iii.The trial Court mainly rely on the deposition of D.W.1 to decree the suit in favour of the plaintiffs.iv.As per the Advocate Commissioner's report, 5 feet wide common passage lies in Survey number 2/3 and the passage claimed by the plaintiffs is in Survey number 348/1. It is 6 feet wide.v.Since the plaintiffs have separate passage to reach Perumal Koil South Meda Street, Villivakkam, the suit filed by the plaintiffs cannot be decreed.9. Aggrieved over the decree and judgment passed by the first Appellate Court, the present second appeal is filed by the plaintiffs.Page 6 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201910. The second appeal was admitted by my learned predecessor on 05.09.2019 on the following substantial question of law: "Whether the lower Appellate Court was right in concluding that the appellants are not entitled to right over the suit passage based on the report of the Commissioner, ignoring the recitals in the Partition deeds, marked as Ex.A6 and Ex.A17?11. Heard Mr.A.Balasingh Ramanujam, learned counsel appearing for the appellants and Mr.Manoharan, learned counsel appearing for the respondent. 12. The main dispute between the plaintiffs and the defendant is with regard to the common passage in Survey number 348/1. The plaintiffs claim that they have right to use the common passage passing through the defendant's land shown in the Rough sketch (Ex.A4). In order to prove the same, the plaintiffs relied on the depositions of the P.W.1 & P.W.2 as well as Ex.A1 to Ex.A17.Page 7 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201913. It is seen from the evidence of the first plaintiff (P.W.1) that the first plaintiff purchased her property through a registered Sale deed, dated 02.02.1996 (Ex.A17) from one Valliappan. The said Valliappan purchased the property from one C.K.Nanda Krishna Reddy through a registered Sale deed, dated 18.02.1991 (Ex.A16). The defendant's husband viz., Parthiban purchased his property from the said C.K.Nanda Krishna Reddy through a registered Sale deed, dated 14.12.1990 (Ex.A18). A perusal of Ex.A18 shows that eastern part of the defendant's property is shown as 6 feet wide common passage. 14. However, Mr.Manoharan, learned counsel appearing for the Respondent/defendant contended that C.K.Gopalakrishnan one of the sharers has executed a General Power of Attorney (Ex.B1) in respect of 6 feet wide common passage in favour of the defendant's husband. Therefore, the plaintiffs cannot claim any right over the entire common passage. However, it has not been shown by the defendant as to how C.K.Gopalakrishnam became entitled to 6 feet wide common passage Page 8 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019lying on the eastern side of the property purchased by the plaintiffs and the defendant's husband. Thus the defendant has not proved any of her contentions in the written statement. On the other hand, the plaintiffs had proved that there is a common passage on the eastern side of her property through Sale deeds (Ex.A5 and Ex.A16). 15. As already observed, in the Sale Deed (Ex.A18) in favour of the defendant's husband, the eastern boundary is described as common passage. Apart from that D.W.1 during the course of cross examination also admitted thus:"vd;Dila tPl;ow;F bjw;F gf;fj;jpy; jhd; thjpfs; tupirahf ,Uf;fpwhu;fs; vd;why; rupjhd;/ mtu;fSk; brhe;j tPl;oy;jhd; ,Uf;fpwhu;fs;/ ntyha[k; vg;nghJ brhj;ij th';fpdhu; vd;W vdf;F bjupahJ/ nfhghy fpU!;zbul;of;F mtu; vdf;F fpiuak; bra;j brhj;J mtUf;F vg;go te;jJ vd;W vdf;F bjupa[k;/ mtu; jd;Dila rnfhjuu;fSld; bra;J bfhz;l ghfgpuptpidapy;jhd; me;j brhj;J te;jJ/ th/rh/M/6 gj;jpuj;jpd;gojhd; nfhghyfpU!;zbul;of;F me;j brhj;J fpilj;jJ/ th/rh/M/6 ghfgj;jpuj;jpd; efy; vd;dplKk; cs;sJ/ th/rh/M/6y; fz;l rp gl;oay; brhj;ijjhd; ehd; Page 9 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019mtuplkpUe;J th';fpndd;/ me;j gj;jpuj;jpy; o gl;oay; brhj;J mtUila rnfhjupfSf;F xJf;fg;gl;ljh vd;W vdf;F bjupahJ/ nkw;go gj;jpuj;jpy; , gl;oay; brhj;J V/gp/rp gl;oay; brhj;jpy; cs;stu;fs; ngha; tUtjw;fhd bghJghij vd;why; rupjhd;/ ehd; 1990y; brhj;ij th';fpa nghJ ghijia milg;gjw;F Kaw;rp bra;atpy;iy/ 1998y; ehd; ghijia milf;f Kaw;rpg;gjhf rrpfyh vd;gtu; nghyPrpy; g[fhu; bfhLj;J vd;id nghyPrhu; tprhupj;jhu;fs;/ 1998y; nghyPrhu; ePjpkd;wj;jpy; ghu;j;Jf;bfhs;SkhW brhy;yptpl;lhu;fs;/ mjd;gpwF ehd; ghijia milf;ftpy;iy/ jw;nghJ 2010y; jhd; ehd; ghijia milj;njd;/ mjdhy; tHf;F nghl;lhu;fs;/ th/rh/M/1 mwptpg;[g vdf;F mDg;gg;gl;lJ/ th/rh/M/1f;F ehd; gjpy; mDg;gpnddh vd;W bjupatpy;iy/vd;Dila brhj;jpw;Fk;. thjpapd; brhj;jpw;Fk; fpHf;F gf;fj;jpy; bjw;F khl tPjpapy; ,Ue;J nkw;go ghij cs;sJ vd;why; rupjhd;/ njtfpak;khs; tPL tiuapYk; nkw;go ghij cs;sJ/ th/rh/M/6Yk; bjw;F khl tPjpapypUe;J njtfpak;khs; tPL tiuapYk; fhl;lg;gl;Ls;sJ vd;why; rupjhd;/ thjpfs;. gpujpthjp jtpu ntW ahUk; ,e;j ghijia cgnahfpff;f KoahJ vd;why; rupjhd;/ ehd; tlf;fpYk;. thjpfs; bjw;fpYk; ,Uf;fpwhu;fs;/ rnfhjuu;fSf;F kl;Lk;jhd; ghijapy; ghj;jpak; cs;sjhf Mtz';fspy; cs;sJ vd;why; rupjhd;/ 1994y; Page 10 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019kPjpa[s;s 187/5 rJumo ,lj;ija[k; ee;jdfpU!;z bul;oaplkUe;Jjhd; th';fpndd;/ Vd; brhj;ij ee;jdfpU!;zdplk; th';fptpl;L ghij ghj;jpaj;ij nfhghyfpU!;zdplk; th';fpajw;F fhuzk; me;j gFjp Fg;ig nghl;Lk;. mRj;jk; bra;Jk; xnu gpur;ridahf ,Ue;jjhy; mt;thW th';fpndd;/ th/rh/M/5y; bghJg;ghij fhl;lg;gl;Ls;sJ vd;why; rupjhd;/ ee;jdfpU!;z bul;of;F cs;s cupikia nru;j;J nfhghyfpU!;zd vdf;F bfhLf;f KoahJ vd;why; rupay;y/ nfhghyfpU!;z bul;o 2012y; ,we;Jtpl;lhu;/ nfhghyfpU!;zd; vGjpbfhLj;j gtiu mDrupj;J ehd; fpiuak; vJt[k; bra;atpy;iy/ nfhghyfpU!;z bul;of;F ghijia bghWj;J gtu; bfhLf;f mjpfhuk; ,y;iy vd;Wk;. mtu; ,we;jgpwF me;j gtu; gj;jpuKk; bry;yhJ vd;Wk; brhd;dhy; rupay;y/ ehd; gfypy;jhd; Rtu; fl;ondd;/ th/rh/M/18y; ee;jdfpU!;z bul;oaplkpUe;Jjhd; brhj;J th';fg;gl;Ls;sJ vd;why; rupjhd;/ th/rh/M/18Yk; fpHf;F gf;fj;jpy; 6 mo ghij cs;sjhf fhl;lg;gl;Ls;sJ vd;why; rupjhd;/ ,d;bdhU brhj;Jk; ee;jdfpU!;z bul;oaplkpUe;Jjhd; th';fg;gl;lJ. mjpYk; fpHf;F gf;fj;jpy; 6 mo ghij cs;sjhf fhl;lg;gl;Ls;sJ/"Page 11 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201916. From the evidence of D.W.1, it is clear that there is a common passage on the eastern side of the plaintiffs and the defendant's properties. The first Appellate Court dismissed the suit filed by the plaintiffs mainly based on the Advocate Commissioner's report and plan. It is pertinent to point out that the Advocate Commissioner has not measured the property with the help of a Taluk Surveyor. More over, the first Appellate Court had held that the plaintiffs have another passage to reach Perumal Koil Mada Street, Villivakkam. Merely because there is a passage for the plaintiffs, the common passage cannot be declared exclusively for the defendant. It is to be pointed out that the plaintiffs have not claimed any easement of necessity over the suit passage and on the other hand, when their document as well as the defendant's document clearly mention the existence of the common passage, the defendant cannot claim any exclusive right over the same.17. In the circumstances, the decree and Judgment passed by the first Appellate Court is liable to be set aside. The substantial question of law is answered in favour of the appellants.Page 12 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201918. In the result,i.the Second Appeal is allowed. No costs. ii.The decree and judgment dated 29.10.2018 passed in A.S.No.138/2016, on the file of the VI Additional Judge, City Civil Court, Chennai, are set aside.iii.The suit in O.S.No.1780/2011, on the file of the V Assistant Judge, City Civil Court, Chennai, is decreed with costs. 17.03.2025Index: Yes/NoInternet: Yes/NoSpeaking/Non-Speaking ordervumTo1. The VI Additional Judge, City Civil Court, Chennai 2. The V Assistant Judge, City Civil Court, Chennai. 3. The Section Officer, VR Section, High Court, Madras.Page 13 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019R. HEMALATHA, J.vumS.A.No.903 of 2019 17.03.2025Page 14 of 14https://www.mhc.tn.gov.in/judis

S.A.No.903 of 2019JUDGMENTThe appellants are the plaintiffs in O.S.No.1780/2011 on the file of the V Assistant Judge, City Civil Court, Chennai. The appellants / plaintiffs filed the suit for a (a) declaration that the wall put up by the defendant across the common passage in Survey number 348/1 is illegal.(b) Mandatory injunction directing the defendant to demolish the said compound wall put-up by the defendant.(c) Permanent injunction restraining the defendant from putting up any construction in the common passage which leads to Perumal Koil Mada Street, Villivakkam, Chennai.2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.3.The case of the plaintiffs in a nutshell is as follows :The plaintiffs are the absolute owners of the property in Survey number 348/1 and door number 123/46, Perumal Koil South Mada Street, Page 2 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019Villivakkam, Chennai 600 049. The defendant's house is situate on the northern side of the plaintiffs' house. There is a common passage measuring 6 feet in Survey number 348/1 on the eastern side of the plaintiffs and the defendant's house. The plaintiffs have been using the said passage ever since the date of purchase of their property. The defendant who is the adjacent land owner had put up a wall across the common passage, thereby preventing the plaintiffs from using the pathway. Hence the suit.4. The suit was resisted by the defendant on the following grounds:i.The defendant has title in respect of 6 feet wide common passage which is on the eastern side of her property. Therefore, the plaintiffs cannot claim any right over the said passage.ii.The plaintiffs have not adduced any evidence to show that they have been using the common passage ever since the date of purchase of their property.Page 3 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 20195. On the basis of the above pleadings, the trial Court framed the following issues:1)"Whether the plaintiffs are entitled for a declaration as prayed for by them?2)Whether the plaintiffs are entitled for a mandatory injunction as prayed for?3)Whether the plaintiffs are entitled for a permanent injunction as prayed for?4)To what relief the plaintiffs are entitled?6. The plaintiffs 1 and 2 examined themselves and marked Ex.A1 to Ex.A18. The defendant examined herself and marked Ex.B1.7. The learned trial court judge, on considering the evidence on record, decreed the suit, vide her decree and judgment dated 09.02.2016 on the following grounds:i.The plaintiffs have adduced sufficient documentary evidence to show that they have been using the common passage on the eastern Page 4 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019side of their property.ii.On the other hand, the defendant had not adduced any documentary evidence to show that she has exclusive right over the common passage measuring 5 x 135 feet.iii.The defendant had relied on the General Power of Attorney (Ex.B1) allegedly executed by one C.K.Gopalakrishnan who is one of the sharers of the previous owners of the properties.iv.However, the defendant had not proved that the said C.K.Gopalakrishnan has exclusive right over the common passage.8. Aggrieved over the decree and judgment passed by the trial court judge, the defendant filed an appeal in A.S.No.138/2016 before the VI Additional Judge, City Civil Court, Chennai. The learned VI Additional Judge, City Civil Court, Chennai, after analysing the oral and documentary evidence on record, reversed the findings of the learned trial Court Judge and dismissed the suit, vide his decree and judgment dated 29.10.2018 on the following grounds: Page 5 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019i.The Advocate Commissioner in his report had categorically stated that there is a separate passage for the plaintiffs to reach Perumal Koil South Mada Street, Villivakkam.ii.The common passage in S.No.348/1 is in exclusive enjoyment of the defendant.iii.The trial Court mainly rely on the deposition of D.W.1 to decree the suit in favour of the plaintiffs.iv.As per the Advocate Commissioner's report, 5 feet wide common passage lies in Survey number 2/3 and the passage claimed by the plaintiffs is in Survey number 348/1. It is 6 feet wide.v.Since the plaintiffs have separate passage to reach Perumal Koil South Meda Street, Villivakkam, the suit filed by the plaintiffs cannot be decreed.9. Aggrieved over the decree and judgment passed by the first Appellate Court, the present second appeal is filed by the plaintiffs.Page 6 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201910. The second appeal was admitted by my learned predecessor on 05.09.2019 on the following substantial question of law: "Whether the lower Appellate Court was right in concluding that the appellants are not entitled to right over the suit passage based on the report of the Commissioner, ignoring the recitals in the Partition deeds, marked as Ex.A6 and Ex.A17?11. Heard Mr.A.Balasingh Ramanujam, learned counsel appearing for the appellants and Mr.Manoharan, learned counsel appearing for the respondent. 12. The main dispute between the plaintiffs and the defendant is with regard to the common passage in Survey number 348/1. The plaintiffs claim that they have right to use the common passage passing through the defendant's land shown in the Rough sketch (Ex.A4). In order to prove the same, the plaintiffs relied on the depositions of the P.W.1 & P.W.2 as well as Ex.A1 to Ex.A17.Page 7 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201913. It is seen from the evidence of the first plaintiff (P.W.1) that the first plaintiff purchased her property through a registered Sale deed, dated 02.02.1996 (Ex.A17) from one Valliappan. The said Valliappan purchased the property from one C.K.Nanda Krishna Reddy through a registered Sale deed, dated 18.02.1991 (Ex.A16). The defendant's husband viz., Parthiban purchased his property from the said C.K.Nanda Krishna Reddy through a registered Sale deed, dated 14.12.1990 (Ex.A18). A perusal of Ex.A18 shows that eastern part of the defendant's property is shown as 6 feet wide common passage. 14. However, Mr.Manoharan, learned counsel appearing for the Respondent/defendant contended that C.K.Gopalakrishnan one of the sharers has executed a General Power of Attorney (Ex.B1) in respect of 6 feet wide common passage in favour of the defendant's husband. Therefore, the plaintiffs cannot claim any right over the entire common passage. However, it has not been shown by the defendant as to how C.K.Gopalakrishnam became entitled to 6 feet wide common passage Page 8 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019lying on the eastern side of the property purchased by the plaintiffs and the defendant's husband. Thus the defendant has not proved any of her contentions in the written statement. On the other hand, the plaintiffs had proved that there is a common passage on the eastern side of her property through Sale deeds (Ex.A5 and Ex.A16). 15. As already observed, in the Sale Deed (Ex.A18) in favour of the defendant's husband, the eastern boundary is described as common passage. Apart from that D.W.1 during the course of cross examination also admitted thus:"vd;Dila tPl;ow;F bjw;F gf;fj;jpy; jhd; thjpfs; tupirahf ,Uf;fpwhu;fs; vd;why; rupjhd;/ mtu;fSk; brhe;j tPl;oy;jhd; ,Uf;fpwhu;fs;/ ntyha[k; vg;nghJ brhj;ij th';fpdhu; vd;W vdf;F bjupahJ/ nfhghy fpU!;zbul;of;F mtu; vdf;F fpiuak; bra;j brhj;J mtUf;F vg;go te;jJ vd;W vdf;F bjupa[k;/ mtu; jd;Dila rnfhjuu;fSld; bra;J bfhz;l ghfgpuptpidapy;jhd; me;j brhj;J te;jJ/ th/rh/M/6 gj;jpuj;jpd;gojhd; nfhghyfpU!;zbul;of;F me;j brhj;J fpilj;jJ/ th/rh/M/6 ghfgj;jpuj;jpd; efy; vd;dplKk; cs;sJ/ th/rh/M/6y; fz;l rp gl;oay; brhj;ijjhd; ehd; Page 9 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019mtuplkpUe;J th';fpndd;/ me;j gj;jpuj;jpy; o gl;oay; brhj;J mtUila rnfhjupfSf;F xJf;fg;gl;ljh vd;W vdf;F bjupahJ/ nkw;go gj;jpuj;jpy; , gl;oay; brhj;J V/gp/rp gl;oay; brhj;jpy; cs;stu;fs; ngha; tUtjw;fhd bghJghij vd;why; rupjhd;/ ehd; 1990y; brhj;ij th';fpa nghJ ghijia milg;gjw;F Kaw;rp bra;atpy;iy/ 1998y; ehd; ghijia milf;f Kaw;rpg;gjhf rrpfyh vd;gtu; nghyPrpy; g[fhu; bfhLj;J vd;id nghyPrhu; tprhupj;jhu;fs;/ 1998y; nghyPrhu; ePjpkd;wj;jpy; ghu;j;Jf;bfhs;SkhW brhy;yptpl;lhu;fs;/ mjd;gpwF ehd; ghijia milf;ftpy;iy/ jw;nghJ 2010y; jhd; ehd; ghijia milj;njd;/ mjdhy; tHf;F nghl;lhu;fs;/ th/rh/M/1 mwptpg;[g vdf;F mDg;gg;gl;lJ/ th/rh/M/1f;F ehd; gjpy; mDg;gpnddh vd;W bjupatpy;iy/vd;Dila brhj;jpw;Fk;. thjpapd; brhj;jpw;Fk; fpHf;F gf;fj;jpy; bjw;F khl tPjpapy; ,Ue;J nkw;go ghij cs;sJ vd;why; rupjhd;/ njtfpak;khs; tPL tiuapYk; nkw;go ghij cs;sJ/ th/rh/M/6Yk; bjw;F khl tPjpapypUe;J njtfpak;khs; tPL tiuapYk; fhl;lg;gl;Ls;sJ vd;why; rupjhd;/ thjpfs;. gpujpthjp jtpu ntW ahUk; ,e;j ghijia cgnahfpff;f KoahJ vd;why; rupjhd;/ ehd; tlf;fpYk;. thjpfs; bjw;fpYk; ,Uf;fpwhu;fs;/ rnfhjuu;fSf;F kl;Lk;jhd; ghijapy; ghj;jpak; cs;sjhf Mtz';fspy; cs;sJ vd;why; rupjhd;/ 1994y; Page 10 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019kPjpa[s;s 187/5 rJumo ,lj;ija[k; ee;jdfpU!;z bul;oaplkUe;Jjhd; th';fpndd;/ Vd; brhj;ij ee;jdfpU!;zdplk; th';fptpl;L ghij ghj;jpaj;ij nfhghyfpU!;zdplk; th';fpajw;F fhuzk; me;j gFjp Fg;ig nghl;Lk;. mRj;jk; bra;Jk; xnu gpur;ridahf ,Ue;jjhy; mt;thW th';fpndd;/ th/rh/M/5y; bghJg;ghij fhl;lg;gl;Ls;sJ vd;why; rupjhd;/ ee;jdfpU!;z bul;of;F cs;s cupikia nru;j;J nfhghyfpU!;zd vdf;F bfhLf;f KoahJ vd;why; rupay;y/ nfhghyfpU!;z bul;o 2012y; ,we;Jtpl;lhu;/ nfhghyfpU!;zd; vGjpbfhLj;j gtiu mDrupj;J ehd; fpiuak; vJt[k; bra;atpy;iy/ nfhghyfpU!;z bul;of;F ghijia bghWj;J gtu; bfhLf;f mjpfhuk; ,y;iy vd;Wk;. mtu; ,we;jgpwF me;j gtu; gj;jpuKk; bry;yhJ vd;Wk; brhd;dhy; rupay;y/ ehd; gfypy;jhd; Rtu; fl;ondd;/ th/rh/M/18y; ee;jdfpU!;z bul;oaplkpUe;Jjhd; brhj;J th';fg;gl;Ls;sJ vd;why; rupjhd;/ th/rh/M/18Yk; fpHf;F gf;fj;jpy; 6 mo ghij cs;sjhf fhl;lg;gl;Ls;sJ vd;why; rupjhd;/ ,d;bdhU brhj;Jk; ee;jdfpU!;z bul;oaplkpUe;Jjhd; th';fg;gl;lJ. mjpYk; fpHf;F gf;fj;jpy; 6 mo ghij cs;sjhf fhl;lg;gl;Ls;sJ/"Page 11 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201916. From the evidence of D.W.1, it is clear that there is a common passage on the eastern side of the plaintiffs and the defendant's properties. The first Appellate Court dismissed the suit filed by the plaintiffs mainly based on the Advocate Commissioner's report and plan. It is pertinent to point out that the Advocate Commissioner has not measured the property with the help of a Taluk Surveyor. More over, the first Appellate Court had held that the plaintiffs have another passage to reach Perumal Koil Mada Street, Villivakkam. Merely because there is a passage for the plaintiffs, the common passage cannot be declared exclusively for the defendant. It is to be pointed out that the plaintiffs have not claimed any easement of necessity over the suit passage and on the other hand, when their document as well as the defendant's document clearly mention the existence of the common passage, the defendant cannot claim any exclusive right over the same.17. In the circumstances, the decree and Judgment passed by the first Appellate Court is liable to be set aside. The substantial question of law is answered in favour of the appellants.Page 12 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 201918. In the result,i.the Second Appeal is allowed. No costs. ii.The decree and judgment dated 29.10.2018 passed in A.S.No.138/2016, on the file of the VI Additional Judge, City Civil Court, Chennai, are set aside.iii.The suit in O.S.No.1780/2011, on the file of the V Assistant Judge, City Civil Court, Chennai, is decreed with costs. 17.03.2025Index: Yes/NoInternet: Yes/NoSpeaking/Non-Speaking ordervumTo1. The VI Additional Judge, City Civil Court, Chennai 2. The V Assistant Judge, City Civil Court, Chennai. 3. The Section Officer, VR Section, High Court, Madras.Page 13 of 14https://www.mhc.tn.gov.in/judis https://www.mhc.tn.gov.in/judis S.A.No.903 of 2019R. HEMALATHA, J.vumS.A.No.903 of 2019 17.03.2025Page 14 of 14https://www.mhc.tn.gov.in/judis