DEIVASIGAMANI vs KANDASAMY

Court
Madras High Court

SA No. 165 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27-10-2026
CORAM
THE HON'BLE MR.JUSTICE P. DHANABAL
SA No. 165 of 2010
and MP.No.1 of 2010
CNR:{HCMA010122132010}
Deivasigamani
No 58 East Kattu Kottai 2nd Ward Mallur Salem.
..Appellant(s)
Vs
1. Kandasamy
Backside Of Mallur Post Office
Komarapalayam Road Mallur Salem Dist.
2. Ayyanar
East Kattu Kottai 2nd Ward Mallur Salem Dist.
..Respondent(s)
PRAYER: This Second Appeal is filed under Section 100 of CPC to set aside
the Decree and Judgment dated 29.09.2009 rendered in AS.No.49 of 2009 on
the file of the Subordinate Judge, Salem, setting aside the judgment and decree
dated 31.12.2008 rendered in OS.No.1107 of 2007 on the file of the District
Munsif Judge, Salem.
For Appellant(s): Mr.T.Karunakaran
For Respondent(s): Mr.N.Damodaran for R1
R2 – Served – No appearance
JUDGMENT
This Second Appeal has been preferred as against the decree and
judgment passed by the Principal Sub-Judge, Salem in A.S.No.49 of 2009 dated
29.09.2009.
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SA No. 165 of 2010
2. The appellant is the plaintiff who filed a suit for bare injunction as
against the respondents herein in OS.No.1107 of 2007 on the file of the District
Munsif Salem and the said suit was decreed in favour of the plaintiff on
31.12.2008. Aggrieved by the said decree and judgment, the defendants 1 and 2
have preferred an appeal in AS.No.49 of 2009 on the file of the Principal Sub-
Judge, Salem. The said appeal was allowed on 29.09.2009 by setting aside the
decree and judgment passed by the trial court. Aggrieved by the said decree and
judgment, the plaintiff has preferred this second appeal.
3. The case of the plaintiff is that originally the suit property belonged to
father of the plaintiff - Pachamuthu Padayachi through sale deed dated
27.12.1967. After the demise of father of the plaintiff, he has been in possession
and enjoyment of the property. The defendants are the adjacent landowners of
the suit property and they are third parties to the suit property. Due to political
dispute between the parties, the defendants attempted to interfere with the
plaintiff's possession and enjoyment of the suit property and thereby he has filed
this suit for permanent injunction.
4. The case of the defendants is that the defendants totally denied the
plaint awareness and according to the defendants, there is a foot pathway
existing in the suit property, which is common to the plaintiff and the
defendants. The abovesaid pathway is the only pathway to reach the lands of the
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SA No. 165 of 2010
defendants. They are using the said pathway for more than 100 years.
Therefore, they resisted the suit that they are entitled to the said foot pathway.
5. Based on the above said pleadings, the trial court has framed the
following issues for trial.
a) Whether there is any foot pathway common to the
plaintiff and the defendant?
b) Whether the plaintiff is entitled for the injunction relief?
6. Before the trial court on side of the plaintiff, they examined PW1 and
PW2 and marked Ex.A1 to Ex.A4. On side of the defendants, DW1 and DW2
were examined and marked Ex.B1 to Ex.B3. After analyzing the evidences
adduced on both sides, the trial court decreed the suit on 31.12.2008. Aggrieved
by the said decree and judgment, the defendants 1 and 2 have preferred an
appeal in AS.No.49 of 2009 on various grounds.
7. The first appellate court framed the following points for determination.
“ l
. thjp kw;Wk; vjph;thjpfSf;F bghJtpy; ghj;jpag;gl;l jlk;
xd;Wjhdh brhj;jpd; tlg[wj;jpy; cs;sJ vd;W vjph;thjpfs;
brhy;tJ rhpah ?
2/ mt;thW bghJ jlk; vJt[k; ,y;iybad;W thjp brhy;tJ
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SA No. 165 of 2010
rhpah ?
3/ thjp nfhUk; epue;ju cWj;Jf;fl;lis ghpfhuk; thjpf;F
?
fpilf;fj;jf;fjh
?
4/ ,e;j nky;KiwaPl;L tHf;F mDkjpf;fj;jf;fJjhdh
?”
5/ thjpf;F fpilf;fj;jf;f ntW ghpfhuk; vd;d
8. Thereafter, the first appellate court set aside the decree and judgment
passed by the trial court by allowing the appeal. Aggrieved by the said decree
and judgment, present second appeal has been preferred by the plaintiff.
9. This court, at the time of admitting the second appeal, framed the
following substantial questions of law.
(i) Whether the lower appellate court is correct in allowing
the appeal on the basis of oral evidence when the lower
appellate Judge himself has given a finding that the
respondents/defendants have not disproved the appellant’s case
by way of documentary evidence, i.e., Revenue record and
Commissioner’s Report?
(ii) Whether the lower appellate Court is correct in
weighing the oral evidence given by the respondents/defendants
when the appellant/plaintiff has proved his case by way of
documentary evidence, i.e., Ex.A.1 to A.4?
10. This Court heard both sides and perused the records.
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SA No. 165 of 2010
10. After elaborate arguments, both the learned counsels agreed that there
is no dispute in respect of the 1.2 acres of land belonging to the
appellant/plaintiff, and the dispute is regarding the pathway.
11. According to the plaintiff, there is no pathway existence within 1.2
Acres of land and the same is belonging to the plaintiff. The defendants also not
disputed the title of the plaintiff over the 1.2 Acres of land and the only
contention of the defendants is that the pathway mentioned in the suit schedule
is not exclusively belongs to the plaintiff and the defendants also having right to
use the said pathway.
12. The counsel appearing for the appellant has also admitted the existing
pathway and not seriously disputed the pathway rights as observed by the courts
below.
13. The learned counsel appearing for the respondents also claimed the
pathway rights mentioned in the suit property and apart from that pathway,
there is no any other claim made by them. In the plaint itself, in the description
of property the plaintiff mentioned the pathway and it is not exclusively belongs
to the plaintiff and one Arundayammal also having right over the said pathway
property and the plaintiff also not claiming any exclusive rights over the
pathway mentioned in the suit property. The defendants also not claiming any
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SA No. 165 of 2010
exclusive right over the said pathway and they have not claimed any right in the
property mentioned in the suit schedule. Both the parties agreed that they have
right to use the said pathway without any interference by each other. Therefore,
it is appropriate to dispose of this second appeal by recording the abovesaid
submissions.
14. Accordingly, the Second Appeal is disposed of in the abovesaid
terms. Consequently, connected miscellaneous petition is closed. No costs.
27-10-2026
Index : Yes/No
Internet:Yes/No
Neutral Citation:Yes/No
gv
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SA No. 165 of 2010
To
1. The District Munsif Judge, Salem
2. The Subordinate Judge, Salem,
3. The Section Officer,
V.R. Section,
High Court, Madras.
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SA No. 165 of 2010
P.DHANABAL J.
GV
SA No. 165 of 2010
and MP.No.1 of 2010
27-10-2026
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SA No. 165 of 2010
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