Madras High Court · 2025

S.A.No.1613 of 2004PRAYER: Second Appeal filed under Section 100 Code of Civil Procedure to set aside the Judgment and decree dated 12.01.2004 in A.S.No.44 of 2003 on the file of the District Court, Karur confirming the judgment and decree dated 20.04.2001 made in O.S.No.199 of 1998 on the file of the Principal District Munsif Court, Karur. For Appellants ... Mr.P.T.S.Narendravasan For Respondents ... Mr.P.Thiyagarajanfor R2 to R7 No appearance for R8JUDGMENTThe Second Appeal has been filed against the Judgment and Decree passed in A.S.No.44 of 2003 dated 12.01.2004 on the file of the District Court, Karur confirming the Judgment and Decree passed in O.S.No.199 of 1998 dated 20.04.2001 on the file of the Principal District Munsif, Karur.2. For the sake of convenience, the parties are referred to as per their ranking in the Trial Court. 2/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 20043.The defendants in O.S.No.199 of 1998 on the file of the Principal District Munsif, Karur are the appellants herein.4. The case of the plaintiffs is that the properties more fully described hereunder in A and B schedule, which are situated at Senaopadi, Nerur North Village, Karur Taluk. The suit A schedule property originally belonged to one Naaliya Kandar, son of Marudha Kandar of Ganappadi and he had been in possession and enjoyment of the same till 07.10.1966. On 07.10.1966, one Ramasamy Kandar who is the father of the plaintiffs purchased the suit A schedule property from the above said Naaliya Kandar. In pursuance of the above said sale deed, the plaintiff's father Ramasamy Kandar was put in possession of the suit A schedule property and since then he had been in possession and enjoyment of the same till his death. The defendants are having their lands on the west of the suit A and B schedule properties. During the absence of the plaintiff, about three months back, the defendants high handed and illegally encroached the suit B schedule property and are obstructing the plaintiff's family from entering into the suit A schedule property through the suit B schedule property. The red washed portion shown in the plaint is the suit B schedule property and it is a road margin 3/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004which was encroached by the defendants. The defendants have got no manner of right to encroach upon the suit B schedule property so as to obstruct the plaintiff from entering into the east west Highways on the north to reach the suit A schedule property. Hence, the suit has been filed to declare that the plaintiff's family is entitled to enter into the suit A schedule property from each and every inch of the road margin viz., the suit B schedule property and consequentially to pass an order of mandatory injunction directing the defendants to remove the encroachment in the suit B schedule property within the time granted by this Court and to pass an order of permanent injunction restraining the defendants, their men, servants, agents or any one on their behalf from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit A schedule property.5. The defendants filed a written statement and contested suit. In the written statement, they have stated that the B schedule property is the property of the Government in S.F.No.93 of Nerur North Village and also the property is the road Poramboke. The first defendant encroached the suit B schedule property in the year 1970 and the same has been in possession and enjoyment of the defendant's family till date. In fact, in the B schedule property, the first defendant has planted several coconut 4/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004saplings and also he has planted coconut saplings on the western side of the suit B schedule property. The western poramboke land is also in possession and enjoyment of the defendant's family. The defendants are having their patta land in S.F.No.83 on the south of the western side poramboke land. The B schedule property and the western side of the B schedule property has been jointly enjoying by the defendant's family from the year 1970 till date. The possession and enjoyment of the defendant's family is in open, peaceful, continuous, without any interruption to the knowledge of others including the plaintiff. So with a view to grap the suit B schedule poramboke land from the defendant, the plaintiff has come forward with this frivolous suit. There is cattle shed in the B schedule property and there is one Chandra Valaya well in the B schedule property. The B schedule property is in peaceful possession and enjoyment of the defendant's family as vacant site for tieing cattle and the above said well has been dug by the defendants for their convenient enjoyment. In the suit B schedule property and the western side of the suit B schedule property, there is an old age 25 coconut trees are standing. All the coconut trees are planted by the first defendant. The plaintiff is neither in possession nor in enjoyment of the suit B schedule property. Hence, they prayed for dismissal of the suit.5/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 20046.On the basis of the above said pleas set out by the respective parties, the following issues were framed by the Trial Court for consideration:1. tof;fpy; thjp Nfhhpagb tpsk;Gif ghpfhuk; ngw chpatuh?2.tof;fpy; thjp Nfhhpagb nraYWj;Jf;fl;lis ghpfhuk; ngw chpatuh?3.tof;fpy; thjp Nfhhpagb epue;ju cWj;Jf;fl;lis ghpfhuk; ngw chpatuh?4. NtWghpfhuk; vd;d?7. Before the Trial Court, on the side of the plaintiffs, two witnesses have been examined as P.W.1 and P.W.2 and 5 documents have been marked as Ex.A1 to Ex.A5. On the side of the defendants, two witnesses have been examined as DW1 and DW2 and 5 documents have been marked Ex.B1 to Ex.B5. 8. The Trial Court, after considering the oral and documentary evidence, decreed the suit as prayed for by granting three months time to remove the obstructions. Aggrieved by this, the defendants preferred an appeal in A.S.No.44 of 2003 before the Principal District Judge, Karur. 6/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004The First Appellate Court, by its Judgment dated 12.01.2004 dismissed appeal by confirming the Judgment and Decree of the trial Court. Aggrieved by this, the defendants filed the present second appeal.9. While admitting the second appeal, this Court has formulated the following substantial questions of law:-“i) Whether the Courts below were right in rejecting the Exhibit B series which are the adangal extract issued by the Tahsidar to prove that the defendants are in possession and enjoyment beyond the statutory period?ii) Whether the Courts below were right in shifting the burden of proof to the defendants to establish their right about their enjoyment and possession of the B schedule property?iii) Whether the Courts below were right in holding that the plaintiffs have right over the B schedule property as pathway to their A schedule property in the absence of any concrete proof by the plaintiffs?”10. The learned counsel for the appellants/defendants submitted that the plaint A schedule property was purchased by the plaintiff's father 7/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004under Ex.A1 sale deed dated 07.10.1966. There is no dispute with regard to the plaintiff's title to A schedule property. B schedule property is in S.F.No.93 which is road poramboke encroached by the first defendant in the year 1970 and he in possession and enjoyment of the property for long period. The plaintiff' never used the east west road on the northern side to reach his A schedule property. The plaintiff is having access on eastern side of B schedule property to reach A schedule property from the road. Further, the plaintiff used the A schedule property as cattle shed. The Advocate Commissioner report Ex.C1 clearly stated about the enjoyment of the defendants. The plaintiff had no right to file the suit for mandatory injunction to remove the encroachment as against the defendants. When the plaintiff is not the owner of B schedule property, he can approach the Government authorities to remove the encroachments made by the defendants. Since B schedule property is the road poramboke in S.F.No.93, the plaintiff has not right to get the relief of mandatory injunction. Since he is having access to reach A schedule property apart from B schedule property, he has no right to claim right to have access through the above schedule property and he is not entitled to permanent injunction. The relief sought for in the suit is not maintainable. The Trial Court and the First Appellate Court have not 8/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004considered the evidence on record properly and the findings of the Courts below is erroneous and liable to be set aside and thus, pleaded to allow the second appeal.11. The learned counsel for the respondents/plaintiff supported the Judgment of the Courts below and further contended that the plaintiff is owning property adjacent to the Highways. The sale deed Ex.A clearly mentioned in the northern boundaries as a road and he is entitled to have access from all points to reach the highways and his access cannot be prevented by putting any construction in any portion. The right of owners of land adjoining a highway to go upon the highway from any points on their land is private right. If the right to access is obstructed by anyone, he is entitled to file the suit for declaration and mandatory injunction, permanent injunction and the suit is well maintainable. There is no ground for interference and there is no merit in the second appeal and thus, pleaded to dismiss the second appeal.12.In support of his contention, the learned Counsel has produced the following judgments:-9/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004(i) 1972(2) MLJ 4 (Damodara Naidu vs. Thirupurasundary Ammal)(ii) 1995(1) LW 451 (KVK.Janarthanan vs. State of Tamil Nadu and others) (iii) 2011(0) Supreme (Mad) 356 (Subbammal vs. Venkatachalam and another) 13. I have considered the matter in the light of the submissions made by the learned counsel appearing on either side and perused the materials available on records carefully.14. On perusal of the records, the facts reveals that the plaintiff's father Ramasamy Kandar had purchased the plaint A schedule property on 07.10.1966 which is evidenced by Ex.A.1 sale deed dated 07.10.1966. This fact is admitted by the defendants and not disputed that the plaintiff is owner of A schedule property. Admittedly, the plaint B schedule property is in S.F.No.93 as a road poramboke.15. The Commissioner's report Exs.C1 reflects the suit A and B schedule property. Ex.C3 Surveyor Map clearly shows the encroachment made by the defendants. The Advocate Commissioner's report and Surveyor Field Map reflects the fact that the defendants encroached the 10/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004road poramboke south to main road north to the plaint A schedule property. The defendants have also admitted in his written statement in para 8 that the property is a road poramboke. Admittedly, the plaint A schedule property is on the southern side of the road.16. A perusal of Ex.A1 sale deed 07.10.1966, it is seen that the description of property is mentioned as follows:-“ne&h; fpuhkj;jpy; m.G.r.87 ne.Vf;.1.70y; jq;fs; G+kpf;F fpof;F> fpoNky; Nuhl;Lf;F njw;F jq;fs; FbapUg;G tPl;Lf;F Nkw;F> jq;fs; eQ;ir G+kpf;F tlf;F ,jd; kj;jpapy; Vf;.0.04 ,JTk;> kh%y; jlKk;> Nkw;gb nrhj;J fpoNky; Kok; 30 njd;tly; Kok; 30 cs;sJ. Nkw;gb nrhj;J fhyp epyk;.”17.From the above, it is seen that the plaintiff's father purchased the property on the southern side of the east west road.18. Admittedly, the suit B schedule property lies in S.F.No.93 is a Government road poramboke. The Advocate Commissioner in his report stated about the fact clearly. From physical features noticed by the Advocate Commissioner, the fact reveals the encroachments made by 11/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004the parties and it also reveals the fact that the plaintiff is having property on the southern side of the main road. Under these circumstances, the defendants have no right to obstruct the adjoining land owner from using the main road for access by putting up any obstruction.19.The law is well settled that the right of owners of land adjoining the main road/highway to go upon the road from any point of their land is private right. If the right obstructed by any one, the owners of the land adjoining main road is entitled to file the suit for declaration and mandatory injunction. Therefore, a person owning property adjourning highways is entitled to have access from all points to reach highways and his access cannot be prevented by putting up any construction, any portion and it is not an answer that the plaintiff has got access from other points to reach the highways. Therefore, the finding of the Trial Court and the First Appellate Court is factually and legally right and there is no ground for interference. I find no merit in the second appeal. The substantial questions of law are answered accordingly.12/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 200420. In the result, the Second Appeal fails and the same is dismissed. No costs.30.1.2025NCC : Yes/NoIndex : Yes/NoInternet: YessknTo:1.The District Judge, Karur.2.The Principal District Munsif, Karur.3.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.13/14 https://www.mhc.tn.gov.in/judis S.A.No.1613 of 2004V.SIVAGNANAM, J.sknJudgment made inS.A.No.1613 of 200430.01.202514/14