Madras High Court
Ponraj vs R.Mariappan on 29 March, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 S.A.(MD)No.87 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.87 of 2010 and
M.P.(MD)No.1 of 2010
Ponraj ... Appellant / Appellant /
Plaintiff
Vs.
1. R.Mariappan
2. R.Balakrishnan
3. K.Mariappan
4. Krishnammal (Died)
5. Thulasiammal
6. Subbulakshmi
7. Ramar
(R-4 died and R-5 to R-7 who are already on record,
were recorded as LRs. of the deceased R-4
vide Order dated 15.02.2022) ... Respondents / Respondents /
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., against the concurrent Judgment and Decree dated
27.08.2009 in A.S.No.37 of 2006 on the file of the Sub Judge,
Sankarankovil, confirming the Judgment and Decree dated
01.12.2005 in O.S.No.44 of 2005 on the file of the Additional
District Munsif, Sankarankovil.
https://www.mhc.tn.gov.in/judis
1/8
2 S.A.(MD)No.87 OF 2010
For Appellant : Mr.F.X.Eugene
For R-1 : Mr.S.Ramesh @ Ramaiah
***
JUDGMENT
The plaintiff in O.S.No.44 of 2005 on the file of the Additional District Munsif Court, Sankarankovil, is the appellant in this second appeal.
2. The suit was filed for the relief of declaration that the second schedule property is a common pathway belonging to the plaintiff and the defendants. The plaintiff also wanted permanent injunction to restrain the first defendant from interfering with the said right to use the pathway in any manner. The first defendant filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial Court framed the necessary issues. The plaintiff examined himself as P.W.1 and one Palanichamy was examined as P.W.2. Ex.A.1 to Ex.A.7 were marked. The first defendant examined himself as D.W.1. Ex.B.1 to Ex.B.3 were https://www.mhc.tn.gov.in/judis 2/8 3 S.A.(MD)No.87 OF 2010 marked. After consideration of the evidence on record, the trial Court by judgment and decree dated 01.12.2005 dismissed the suit. Questioning the same, the plaintiff filed A.S.No.37 of 2006 before the Sub Court, Sankarankovil. By the impugned judgment and decree dated 27.08.2009, the first Appellate Court confirmed the decision of the trial Court and dismissed the appeal. Challenging the same, this second appeal came to be filed.
3. Though the second appeal was filed way back in the year 2010, only notice was ordered and it has not been admitted till date.
4. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to frame substantial questions of law and admit this second appeal and then take up the appeal for disposal.
5. Per contra, the learned counsel appearing for the contesting respondents submitted that the impugned judgment and decree do not call for any interference. https://www.mhc.tn.gov.in/judis 3/8 4 S.A.(MD)No.87 OF 2010
6. I carefully considered the rival contentions and went through the evidence on record.
7. There is no dispute that the lands owned by the parties herein belonged to one Sethuraj and Godhanda Raman. The plaintiff as well as defendants 2 to 7 purchased their respective lands on the same day on 19.08.1985. The sale deed standing in the name of the plaintiff was marked as Ex.A.1.
8. The only question that calls for consideration is whether the pathway lying between the land purchased by the plaintiff and the land purchased by the defendants 2 to 7 shown as AEFG in the plaint plan is a common pathway or not. It is true that in the title documents of the plaintiff and that of defendants 2 to 7, the western / eastern boundary has been described as a common pathway (vandi paathai). The first defendant had purchased the northern portion under Ex.B.1 dated 04.04.1988. He later purchased the right of path way over the second schedule property under Ex.B.2 dated 24.02.1989. The stand of the first defendant is that while he https://www.mhc.tn.gov.in/judis 4/8 5 S.A.(MD)No.87 OF 2010 had specifically purchased the right to use the second schedule pathway under Ex.B.2, neither the plaintiff nor the other defendants did likewise. The contention of the appellant on the other hand is that in their title document, the second schedule property has been described as a common pathway and that therefore, the Courts below ought to have granted the relief of declaration as sought for. Though there is some substance in the contention advanced by the learned counsel appearing for the appellant, I am not in a position to interfere for the sole reason that the vendors have not been impleaded as defendants nor they have been examined as witnesses. The learned counsel appearing for the contesting respondents would point out that the vendors owned a larger extent of land and they did retain certain portions on the northern side after selling in favour of the plaintiff as well as the defendants. In order to access the retaining portion, they had set apart the second schedule property as a pathway. According to the learned counsel appearing for the contesting respondents, the said pathway is common only to the vendors, namely Sethuraj and Godhanda Raman. Whether with this intention the sale deed was executed or whether it was meant to be a https://www.mhc.tn.gov.in/judis 5/8 6 S.A.(MD)No.87 OF 2010 pathway common to the vendors as well as the purchasers could have been factually adjudicated, only if the vendors had been made defendants. That is why, the Courts below have concurrently held that the suit is bad for non-joinder of necessary parties. Therefore, on this ground alone, I decline to interfere. I make it clear that I have not gone into the merits of the matter. The rights of the appellant are left open.
9. This second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
29.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis 6/8 7 S.A.(MD)No.87 OF 2010 To:
1. The Sub Judge, Sankarankovil.
2. The Additional District Munsif, Sankarankovil.
3. The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 7/8 8 S.A.(MD)No.87 OF 2010 G.R.SWAMINATHAN,J.
PMU S.A.(MD)No.87 of 2010 29.03.2022 https://www.mhc.tn.gov.in/judis 8/8 9 S.A.(MD)No.87 OF 2010 https://www.mhc.tn.gov.in/judis 9/8