Madras High Court
R.Kuppusamy vs K.Pushpana Gounder on 28 May, 2025
S.A.No.946 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.05.2025
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
S.A.No.946 of 2011
R.Kuppusamy ...Appellant/ 1st Appellant/2nd Plaintiff
Vs.
1.K.Pushpana Gounder
2.C.Nallamal
3.C.Damodhara Gounder
4.C.Pappathi
5.R.Mani ...Respondents/Respondents/ Defendants
6.P.Lakshmi .. 3rd Plaintiff/2nd Appellants/6th Respondent
Prayer: This Second Appeal is filed under Section 100 of C.P.C., against the
judgment and decree dated 20.10.2005 made in A.S.No.52 of 2005 on the
file of the I Additional Subordinate Court, Erode, confirming the judgment
and decree dated 12.01.2005 passed in O.S.No.622 of 2000 on the file of
the II Additional District Munsif Court, Erode.
For Appellant : Mr.S.Rajendrakumar
for M/s.Suresh Associates
For Respondents : No Appearance
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S.A.No.946 of 2011
JUDGMENT
Being aggrieved by the concurrent findings of the order of dismissal dated 12.01.2005 made in O.S.No.622 of 2000 by the II Additional District Munsif Court, Erode and the judgment and decree dated 20.10.2005 made in A.S.No.52 of 2005 by the I Additional Subordinate Court, Erode, the 2 nd plaintiff herein has preferred this Second Appeal.
2.Despite receipt of notice, neither the respondents appeared nor represented through their counsel.
3.The case of the plaintiffs is that the husband of the 1 st plaintiff (died), father of the plaintiff Nos.2 & 3 and 5th defendant herein is one Ranga vannan. Father of said Ranga vannan is one Karuppa vannan. Karuppa vannan and his brother Pappa vannan purchased Punja land measuring acre 1.83-4/3 cents in S.F.No.148 of Thuyyampoondurai Village corresponding to R.S.No.174/2 under a registered sale deed dated 21.04.1904. Subsequently, the said Karuppa vannan and Pappa vannan orally partitioned the same. The plaintiffs' further's case is that Ranga vannan purchased an extent of punja land to an extent of 0.42-3/4 cents and a house to an extent of 3 anganams in S.F.No.148-A of Thuyyampoondurai village corresponding to R.S.No.174/2 under a registered sale deed dated 2/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 23.11.1950.
3.1.The 1st plaintiff purchased an extent of 0.20 cents in punja land in S.F.No.148-A of Thuyyampoondurai village corresponding to R.S.No.174/2 under a registered sale deed dated 14.11.1978. The said Ranga Vannan again purchased punja land measuring acre 0.08 in R.S.No.174/3 and another punja land measuring acre 0.39 in R.S.No.174/1 of Thuyyampoondurai village under a registered sale deed dated 24.04.1987 from one Ponnayammal, wife of Nallappa gounder. The said Ranga vannan died leaving behind the 1st plaintiff his wife, the 2nd plaintiff and 5th defendant his sons and the 3rd plaintiff his daughter. The plaintiffs and the 5 th defendant succeeded to the properties of Ranga vannan and they are enjoying the said properties in common without any partition.
3.2. The above said properties are resurveyed and assigned as R.S.No.174/1, 2 and 3. The plaintiffs and the 5th defendant are in possession and enjoyment of the above said properties by paying kists to the Government lands in R.S.No.174/1, 2 and 3 which are situated on the north. A cart track is running from R.S.No.175 and run towards north on the western side of R.S.No.174/7, 6, 5 and 4 and running on the south of R.S.No.174/1, 2 and 3. The width of the cart track is 16 feet. The cart track 3/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 is running from Government land up to the lands of the plaintiffs through R.S.No.174/7, 6, 5 and 4. The 16 feet cart track is the subject matter of the suit. Rough plan A is attached with the plaint.
3.3.The plaintiffs contend that 1st defendant purchased the properties in R.S.No.174/4, 6, 8 and 9 through a registered sale deed dated 25.01.2000. The defendant Nos.2 and 4 are also owning lands in R.S.No.174/5. The defendants 1 to 4 prevented the plaintiffs from using the suit cart track and the 1st defendant also put up obstruction on the north west corner in R.S.No.174/4. Despite the resistance by the plaintiffs, 1 st defendant put up a cement platform and demolished the cart track. To this effect, the plaint plan B is annexed along with plaint and it is shown as B- schedule property.
3.4. Since the defendants 1 to 4 caused damage to the cart track, the plaintiffs are not able to take the carts to their lands through the suit cart track and they used the said track by walk. The suit cart track is absolutely necessary to the plaintiffs for taking cart, cattle, agricultural products, manure, seeds etc. Even in the sale deeds in favour of the vendor of the plaintiffs and the plaintiffs, the suit cart track is clearly mentioned. The suit cart track is clearly mentioned in the sale deeds of the defendants and also 4/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 under principle of easement by prescription and grant, the plaintiffs are enjoying the suit cart track. The plaintiffs have no other access to reach their lands except the suit cart track. Hence, the suit.
4.Contending contra, on behalf of the 1 st defendant, it is averred that the width of the cart track running through R.S.No.174/4 to 7 up to the lands of the plaintiffs from R.S.No.175 is not admitted. It is an imaginary cart track. The existence of the alleged cart track is denied. The cart track mentioned in the sale deed of the defendants is meant for the lands of defendants. Only a foot path runs up to R.S.No.174/1 alone. A bund with stones preventing the soil erosion has been constructed on the north of R.S.174/4. The plaintiffs have their own cart track which runs East-West Killiampatti Tar Road which reaches up to R.S.No.174/10.
5.On behalf of the 5th defendant, it is contended that there is only a pathway from time immemorial and the plaintiffs and the defendants have been using the said path to reach their lands and the width of the pathway is about 3 feet. There is no necessity to claim any right over the lands of the defendants 1 to 4 for the right of cart track, since the plaintiffs and the defendants used the foot path as usual.
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6.Based on the divergent pleadings, the trial Court framed the following issues.
1.Whether the plaintiffs are entitled to permanent injunction against defendants 1 to 4 as prayed for?
2.Whether the plaintiffs are entitled to mandatory injunction against defendants 1 to 4 for removing the obstruction made in the suit cart track?
3.To what other relief?
7.To substantiate the plaint details, on the plaintiffs' side two witnesses were examined and five documents were marked. On the defendants' side though three witnesses were examined, as D.W.3 did not turn up for cross examination, his evidence is not considered. Reports and plans 2 in number, marked though the Advocate Commissioner are Exhibits C1 to C4.
8.Upon consideration of oral and documentary evidence of both sides and after hearing the arguments advanced by either side, the trial Court has observed that as per the report of the Advocate Commissioner, only two feet width is there in the cart track and held that there is no construction made in the alleged cart track causing obstruction and ultimately, dismissed the suit in entirety.
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9. Aggrieved, the plaintiff Nos.2 and 3 preferred Appeal in A.S.No.52 of 2005 before Ist Additional Sub-Court, Erode. Upon consideration of case records and after hearing arguments advanced by either side, the first Appellate Court held that through the sale deeds marked by the plaintiffs' side, that cart track with 16 feet width was not established by the plaintiffs and dismissed the appeal by confirming the judgment and decree of the trial Court. Aggrieved by the judgment and decree of both the Courts below as mentioned supra, the 2nd plaintiff has preferred this Second Appeal.
10.The learned counsel for the appellant would strenuously contend that in Exs.A1 and A2 the existence of cart track has categorically been mentioned. Even D.W.1 has spoken about the existence of cart track. There is a wall put up to 8 feet height obliterating the 16 feet cart track as claimed by the appellant. The Advocate Commissioner has in his report has mentioned that the width of the cart tract is 10 feet and with this, the plaintiffs are non suited which is not sustainable in law.
11.In consideration of the above said details, the following Substantial Questions of Law arise for consideration.
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a) Whether the Courts below are right in dismissing the case of the plaintiffs/appellant on a plea not advanced by them i.e., Easement of necessity when actually the plaintiff has claimed easement by grant and prescription?
b) When the defendant himself has admitted as to the existence of cart track, which is the best evidence, can the Courts below insist upon evidence from the plaintiff/appellant?
c)When the Advocate Commissioner has given a report stating that 8 feet length of a wall has been newly plastered can the Courts below enter a finding contrary to that?
d) Whether the Courts below are correct in law in dismissing the case when Exhibit A3-title deed of the defendants contains recital as to the existence of cart track?
e)When the Advocate Commissioner found that a cart track to width of 10 feet in existence on ground can the Courts below enter different findings?
12.By virtue of the sale deeds namely Exs.A1, A7 and A9, the plaintiffs' family owned an extent of 2.46-3/4 cents in R.S.No.174/2 (through Ex.A1 0.20 cents, through Ex.A7 1.83-3/4 cents and through Ex.A9 0.42-3/4 cents). Through Ex.A2 sale deed dated 24.04.1987, Ranga Vannan purchased an extent of 0.39 cents in R.S.No.174/1. 8/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011
13.The plaintiffs have also marked the sale deed of 1 st defendant/K.Pushpana Gounder (D.W.1) namely, sale deed dated 25.01.2000 Ex.A3) land to an extent of 0.94 cents in R.S.No.174/4.
14.Ex.A5 sale deed dated 24.04.1987 pertains to R.S.No.174/3, land situate to the extreme Eastern side of the suit pathway and as per the Advocate Commissioner's plan Ex.C2 on the North Eastern side of R.S.No.174/3 the cart track runs in the North-South direction in the East- West direction. Therefore, this document will be of no use to improve plaintiffs' case.
15.On a careful perusal of the plaint averments, it has been pleaded that cart track right is an easementary right by necessity. It has been also stated that in the plaintiffs' sale deeds, suit cart track details are clearly mentioned so also in the sale deed of the defendants. The plaintiffs have also pleaded that easement by prescription and grant, they are enjoying the suit cart track.
16.What kind of easement right claimed by the plaintiffs is not made clear. However, on a careful perusal of the entire plaint details and the sale 9/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 deeds of plaintiffs Exs.A1, A7 and A9 would go to show that the plaintiffs have pleaded about easement by grant as the cart track details have been mentioned in their sale deed as mentioned supra. On a perusal of the Exs.A1, A7 and A9 a mention is made about the cart track. Therefore, the easement right claimed by the plaintiffs is easement right by grant. As regards the easement right by grant, law is well settled that once the plaintiffs have purchased the property with the right of cart track, then the said right will not get extinguished even if alternative pathway is available to the plaintiffs. It is relevant to note that the right of easement acquired by grant cannot be said to have been extinguished on the ground stated in Section 41 of the Easements Act and it is even held to be immaterial whether the easement by grant was by way of an express grant or a grant by necessary implication on a true construction of the deed.
17.A case has to be disposed of on merits on the basis of pleadings, evidence let in by the parties. In a case where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. Because easement is a precarious and a special right. The plaintiffs claim that the right of easement explained through the sale deeds as mentioned supra. Therefore, it is then incumbent on the owner of the survient tenament to show by sufficient strong proof that the use has been 10/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 by virtue of grant so also when the plaintiffs complain of the act of the defendants as regards the right of easement, then it should have been proved that the right existed.
18.As regards the easement right by grant, in order to have a lawful origin under a grant. it is essential that there could be a capable guarantor and a capable guarantee.
19.In order to prove the plaint details, the plaintiff has examined himself as P.W.1 and an independent witness one Thangaraj-P.W.2 has spoken about the plaint details and about the existence of cart track and the enjoyment of cart track right.
20.Ex.A6 is the true copy of FMB relates to field Number 174 of Thuyyampoondurai Village. From Ex.A6 lie and location of property situate in R.S.No.174 could be ascertained.
21.Before Trial Court, an Advocate Commissioner was appointed at the instance of the plaintiffs to note down the physical features of the suit property and he has filed his report and plan (Exs.C1 and C2). In Ex.C1, it has been mentioned that the suit cart track width is 10 feet at some place 11/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 and 8 feet, 2 feet and 1 feet in some other places. The relevant portion of the report of the Advocate Commissioner is extracted hereunder:
“...nkw;go tz;og;ghij Rkhh ; 10 mo mfyk;
fhzg;gl;lJ. nkw;go tiug;glj;jpy; fhl;oa[s;sJ nghy ; ,ilapy ; tlg;g[wkhf bry;Yk;
tz;og;ghij Rkhh; 100 mo ePsk; tiu 8 mo mfykhf gpujpthjpfs ; g{kp tiu fhzg;gl;lJ/ mjw;F nky; gpujpthjpfs; g{kpapypUe;J thjpfs;
g{kp tiu bry;Yk; ghij Rkhh; 2 mo mfyk;
kl;Lnk fhzg;gl;lJ/ rpy ,l';fspy ; 1 mo kl;Lk; ghij cs;sJ///”
22.Thereafter at the instance of the defendants, the same Commissioner was directed to re-visit the suit property and he filed his report which is marked as Exs.C3 and C4. In Ex.C1 Advocate Commissioner's Report existence of cart track towards North, East and South of the plaintiffs property is also mentioned.
23.P.W.1 would state that the cart track runs through R.S.No.174/7, 174/6, 174/5 and 174/4. He would state that they were enjoying the cart track by using cart and he would state that the same was obliterated the 12/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 defendants.
24.On a careful perusal of the plaint and the schedule of the property namely width of the suit cart track is not mentioned. Whereas plaint reads that width of the cart track is 16 feet.
25.Ex.A3 is the sale deed executed in favour of the 1 st defendant herein in respect of R.S.No.174/4 0.76 cents, in R.S.Nos.174/6 0.49 cents, in R.S.No.174/9 0.04 cents. There is a mention in the said sale deed about cart track that runs through R.S.No.174/5, 174/6 and 174/7.
26.When the easement is by prescription, then the plaintiffs have to prove about the existence of the cart track and the usage of said cart track. Though Ex.A6-FMB is filed, no Revenue official is examined in order to throw more light as to the lie and location of the property. Ex.C2 rough plan of the Advocate Commissioner indicates the fact that there exists a cart track to the South of the plaintiffs' property that runs East-West and thereafter runs in North-South and proceeds towards West and joins Kiliyampatti Road. In the first report the above said cart track is not shown by the Advocate Commissioner. Only in the second rough plan (Ex.C2), the other cart track is shown.
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27. It is relevant to note that D.W.1 has stated that he has admitted that the pathway is in usage and not cart track. Therefore the plaintiffs have failed to establish that the width of the pathway is 16 feet. As per Ex.C2 another pathway is in existence as mentioned supra (Ex.C2). As the right of cart track is a precarious right and burden heavily rests on the plaintiffs to establish their case. The plaintiffs have utterly failed to establish the above facts, the trial Court as well as the 1 st appellate Court have rightly dismissed the case of the plaintiffs. Accordingly, all the substantial questions of law are answered in favour of the respondents/defendants. In view of these discussions and observations, this Court does not find any good reason to upset the findings of the first appellate Court.
28.In fine, the Second Appeal stands dismissed. Sequal to this judgment and decree dated 20.10.2005 made in A.S.No.52 of 2005 on the file of the I Additional Subordinate Court, Erode stands confirmed. There is no order as to costs.
28.05.2025 Index : Yes / No Internet : Yes/ No gbi 14/16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/01/2026 08:37:00 pm ) S.A.No.946 of 2011 To
1.The I Additional Subordinate Court, Erode.
2.The II Additional District Munsif Court, Erode.
3. The Section Officer, V.R.Section, High Court of Madras, Chennai.
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