Madras High Court
Sengoda Gounder (Died) vs Thangavelu on 19 August, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.06.2025
Pronounced on : 19.08.2025
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
S.A.Nos. 824 & 825 of 2009
S.A.No. 824 of 2009
1. Sengoda Gounder (died) ... Defendant /Respondent/Appellant
2. Tamil Selvi
3. Ganthimathi ... Appellants
[Appellants 2 & 3 brought on record as LRS of the deceased sole appellant
viz Sengoda Gounder vide Court order dated 04.10.2021 made in
C.M.P.No. 15757 of 2021 in S.A.No. 824 of 2009]
Vs.
Thangavelu
... Plaintiff/Appellant/Respondent
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree of the Subordinate
Judge's Court at Tiruchengode, dated 29.11.2008 in A.S.No. 168 of 2008
(previously A.S.No. 178 of 2003 on the file of the District Court at
Namakkal) reversing the judgment and decree of the District Munsif Court
at Tiruchengode, dated 20.02.2003 in O.S.No. 274 of 1986.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm )
2
S.A.No. 825 of 2009
1. Sengoda Gounder (died) ... Plaintiff/Respondent/Appellant
2. Tamil Selvi
3. Ganthimathi ... Appellants
[Appellants 2 & 3 brought on record as LRS of the deceased sole appellant
viz Sengoda Gounder vide Court order dated 04.10.2021 made in
C.M.P.No. 15676 of 2021 in S.A.No. 825 of 2009]
Vs.
1. Ramasamy Gounder
2. Thangavelu
... Defendants 3 & 4 / Appellants/Respondents 1 & 2
3. Thayammal
... 1st Defendant/2nd Respondent/3rd Respondent
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree of the Subordinate
Judge's Court at Tiruchengode, dated 29.11.2008 in A.S.No. 184 of 2008
(previously A.S.No. 178 of 2003 on the file of the District Court at
Namakkal) reversing the judgment and decree of the District Munsif Court
at Tiruchengode, dated 20.02.2003 in O.S.No. 489 of 1981.
***
For Appellants
in both S.As. : Mrr. P.Valliappan
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm )
3
Senior Counsel for
Mr.GRM.Palaniappan
For Respondents
in both S.As. : Mr. G.Jagadish
COMMON JUDGMENT
The plaintiff in O.S.No. 489 of 1981 on the file of the District Munsif Court at Tiruchengode has filed S.A.No. 825 of 2009. Pending the Appeal, the appellant died and his legal representatives had been brought on record.
2. The said suit in O.S.No. 489 of 1981 had been filed seeking a declaration of the right of the plaintiff to use a cart track and common pathway in S.No. 129 to reach his farm house, well and lands from the Panchayat Road situated north of S.No. 129 for himself and for his cattle and servants and for permanent injunction restraining the defendants from causing obstruction in the usage of the pathway.
3. The fourth defendant in the said suit had filed O.S.No. 274 of 1986 again in the District Munsif Court at Tiruchengode against Sengoda Gounder. The suit in O.S.No. 274 of 1986 had been filed seeking a https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 4 declaration that the plaintiff was the absolute owner of the suit properties and seeking permanent injunction restraining the defendants from trespassing into the suit property and for costs.
4. Since the property involved in both the suits were common, joint trial was conducted in both the suits. By common Judgment dated 20.02.2003, O.S.No. 489 of 1981 was decreed and O.S.No. 274 of 1986 was dismissed.
5. Thereafter, the second and fourth defendants in O.S.No. 498 of 1981 filed A.S.No. 184 of 2008 and the plaintiff in O.S.No. 274 of 1986 filed A.S.No. 168 of 2008. Both the Appeal Suits came up for consideration before the Sub Court at Tiruchengode and by common Judgment dated 29.11.2008 both the Appeal Suits were allowed necessitating the filing of the two Second Appeals by the plaintiff/Sengoda Gounder in O.S.No. 489 of 1981, who was the defendant in O.S.No. 274 of 1986.
6. Both the Second Appeals had been admitted on the following three substantial questions of law:-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 5 “(a) whether the Lower Appellate Court is correct in law in totally misconstruing Exhibits C3 and C4, Commissioner's Report and Plan as stated by the appellant herein in holding that there is an alternate access for the appellant to reach his land against the report and plan filed by the Commissioner?
(b) Whether the Ex.A1, Registered Sale Deed, dated 11.11.1963 clearly discloses the boundaries of the property purchased by the appellant with regard to the cart track as claimed by the appellant and that was not considered by the Court below as per law?
(c) Whether the Court below has not considered Section 6 of the Transfer of Property Act, 1882 in deciding the rental contract claimed by the appellant on the evidence available on records?” O.S.No. 489 of 1981 / District Munsif Court, Tiruchengode:
7. The plaintiff Sengoda Gounder claimed to be the owner of land https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 6 measuring 5.50 acres in S.No. 129 dry 3.88 of Munjanoor Village, Tiruchengode. He had purchased the same by a registered sale deed dated 11.11.1963. It had been contended that the first and second defendants, Thayammal and Sellappan also possessed a portion of lands in S.No. 129 in Munjanoor Village. Their lands were to the north of the lands of the plaintiff. It had also been contended that a Panchayat road was running east to west on the northern side of S.No.129 of Munjanoor Village. From the said Panchayat Road, a clear cut pathway and cart track used for men, cattle and carts starts and runs towards south along the western boundary of S.No.129 and reaches the plaintiff's farm house and well. It had been stated that the pathway was 15 feet wide through out and that the plaintiff and the first and second defendants and their predecessors in title were using the same for several decades.
8. It had been further stated that the third defendant Ramasamy Goundar had tried to purchase certain lands from the second defendant. However, even before completing the sale, he was threatening the plaintiff that he would disturb the cart track and prevent the plaintiff from using it. It had been stated that the first and second defendants also joined with the third defendant in preventing the plaintiff from using the cart track. https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 7
9. In the plaint, it was stated that on 19.10.1980, the defendants had tried to prevent the plaintiff from using the cart track. It was under those circumstances that the suit had been filed seeking declaration of the right of the plaintiff to use the cart track and permanent injunction restraining the defendants from interfering with such right and for costs of the suit.
10. The third defendant filed a written statement in which he had disputed the claim of ownership of the plaintiff to an extent of 5.50 acres of land in S.No. 129 of Munjanoor Village. It had been contended that the first and second defendants owned lands in the northern portion in S.No.
129. It had been further contended that the third defendant also owns properties adjoining the lands in S.No. 129 and the Arasapalayam to Munjanoor Road. It had been further contended that there was yet another Panchayat road on the south and to the east of the plaintiff's lands running from Vaiyiappamalai to Munjanoor and having direct access to the lands of the plaintiff. It had been contended that the plaintiff and his predecessor in title had been using only that road to reach their lands and house.
11. In the written statement, the claim of the plaintiff that there was a pathway from the east to west Panchayat road running towards south to the house and well of the plaintiff had been specifically denied. It had been stated that no such cart track exists on ground. It had been contended that https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 8 just like the third defendant, the plaintiff also tried to purchase the lands from the first and second defendants and since he could not, he had filed the suit to force the first and second defendants to come to terms. The allegation of threat not to use the cart track had been specifically denied. It was claimed that the suit should be dismissed.
12. The fourth defendant/Thangavelu also filed a written statement wherein he contended that the rough plan annexed by the plaintiff along with the plan was incorrect and misleading. There was a specific denial of the existence of cart track as alleged by the plaintiff. It had been contended that the fourth defendant had purchased 1.25 acres of land in S.No. 129 with specific boundaries on 20.11.1980 by a registered sale deed from the second defendant and his wife and sons for valid consideration. It had been stated that the fourth defendant was in possession and enjoyment of the said land. It had been contended that the plaintiff has no right over the lands of the defendants. It had been further contended that a Panchayat road is running from Vaiyiappamalai to Munjanoor on the south and east of the lands of the plaintiff. It had thus been stated that the plaintiff had alternate way to his lands. It had thus been urged that the suit should be dismissed.
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13. On the basis of the above pleadings, the following issues were framed:-
“(i) whether the plaintiff is entitled for the relief of declaration and permanent injunction as sought in the plaint?;
(ii) To what other reliefs are the plaintiff entitled to? “ O.S.No. 274/1986 – District Munsif Court, Tiruchengode:
14. R.Thangavelu / the fourth defendant in O.S.No. 489 of 1981, the plaintiff claimed that the suit properties were agricultural lands in S.No. 129 at Munjanur Village, Tiruchengode Taluk, measuring 2.03 acres. It had been contended that the said lands were his self acquired lands, having purchased the same by registered sale deed dated 20.11.1980. It had been further contended that he has been in continuous possession of the same and that the chitta and adangal also stood in his name. It had been contended that the defendant Sengoda Gounder, who was the plaintiff in O.S.No. 489 of 1981 also had lands to the south of the lands of the plaintiff and had offered to purchase the suit property. It had been further https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 10 contended that he denied the title of the plaintiff and tried to disturb his peaceful possession. It had been contended that the defendant had no manner of right or title or interest over the lands. It had therefore been claimed that the plaintiff should be declared as the absolute owner of the suit lands and that permanent injunction should be granted against the defendant restraining them from interfering with peaceful possession.
15. The defendant filed a written statement wherein it had been contended that the plaintiff was not in exclusive possession and enjoyment of the suit lands. It had been stated that the defendant had been using the cart track to reach his lands. The title of the defendant to 5.50 acres had been denied. It had been contended that there was only one way of access from the lands of the defendant to the road which runs north to south on the northern portion of the lands of the plaintiff. It had been stated that there was no alternate pathway. It had been stated that the suit had been filed with mala fide intentions, and that it should be dismissed.
16. The defendant filed additional written statement claiming right to pathway of way of prescriptive usage for more than the statutory period as claimed in O.S.No. 489 of 1981.
17. On the basis of the above pleadings, the following issues were https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 11 framed:-
“(i) Whether the pendency of O.S.No. 489 of 1918 would affect this suit?;
(ii) Whether the contention of the plaintiff that there was a pathway used by men, cattle and carts was true?; and
(iii) To what reliefs is the plaintiff entitled?”
18. The second issue was recast and was re-framed as follows:-
“(i) Whether the plaintiff is entitled to the relief of declaration and permanent injunction?” Common Judgment in O.S.Nos. 489 of 1981 and 274 of 1986 on the file of the District Munsif Court, Tiruchengode, dated 20.02.2003:-
19. Joint trial was conducted in both the suits. The plaintiff in O.S.No. 489 of 1981, Sengoda Gounder examined himself as PW-1. He also examined another witness Venkatachalam as PW-2. The plaintiff in https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 12 O.S.No. 274 of 1986, who was the fourth defendant in O.S.No. 489 of 1981, R.Thangavelu was examined as DW-1. He also examined S.Shanmugam as DW-2. The plaintiff marked Exs. A-1 to A-3. These included the sale deed dated 11.11.1963 and the patta in the name of Sengoda Gounder as Ex.P-3. On the side of the defendants, Exs. B-1 to B- 17 were marked. These included the sale deed in the name of Thangavelu dated 20.11.1980 as Ex.B-6 and the title documents of the property as Exs. B-1 to B-5. The rectification deed in Ex.B-6 was marked as Ex.B-7. The patta with respect to the said lands was marked as Ex.B-8. The kist receipts were marked as Exs. B-9 to B-60 and the agreement of sale with Chellamuthu dated 02.09.1980 was marked as Ex.B-17.
20. During trial, the reports and sektch of the Advocate Commissioner were marked as Exs. C-1 to C-4 and the objections of the third defendant in O.S.No. 489 of 1981 was marked as Ex.C-6.
21. On the basis of the evidence adduced and on appreciation of the averments in the pleadings and also specifically considering the reports and sketch of the Advocate Commissioner, the learned District Munsif observed that there was strong evidence of a cart track commencing and running towards south from the Panchayat road which runs east to west to the northern side of the lands of the plaintiff in O.S.No. 489 of 1981 and https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 13 that it reaches the thatched use of the plaintiff and his lands.
22. The learned District Munsif also examined Section 8 of the Transfer of Property Act, 1882 of the interest which the transferor had and the capability of what could also be transferred. It was held that the plaintiff had been using the cart track and there was evidence for such usage and further, even though there was an alternate way, it was held that it would be convenient to the plaintiff if the declaration for usage of the cart track is granted. Holding as above, the suit in O.S.No. 491 of 1981 was decreed and the suit in O.S.No. 274 of 1986 was dismissed. A.S.No.168 of 2008 and A.S.No. 184 of 2008 – Sub Court, Tiruchengode, Judgment dated 29.11.2008:
23. Questioning the Judgment and decree of the trial Court, the plaintiff in O.S.No. 274 of 1986 filed A.S.No. 168 of 2008 and the second and third defendants in O.S.No. 489 of 1981 filed A.S.No. 184 of 2008.
24. Both the Appeal Suits came up for consideration before the Sub https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 14 Court, Tiruchengode. By Judgment dated 29.11.2008, the learned Special Judge held that the plaintiff had an alternate way to reach his place and further observed that the suit cart track was full of bushes as seen from the second report of the Advocate Commissioner. It was held that the existence of the alternate way had also been pointed out in the report of the Advocate Commissioner. That road runs from Vaiyappamalai to Munjanoor on the south and east of the lands of the plaintiff and holding that since there is an alternate pathway, it was held that the plaintiff cannot seek a right for exclusive use of the suit property. The Appeal Suits were allowed and the Judgment and Decree of the trial Court was set aside. S.A.Nos. 824 & 825 of 2009:
25. Challenging the said Judgment and Decree of the First Appellate Court, the plaintiff in O.S.No. 489 of 1981, who was the defendant in O.S.No. 274 of 1986 had filed the present Second Appeal.
26. Pending the Second Appeal, the appellant died and his legal representatives had been brought on record.
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27. The Second Appeal had been admitted on the following substantial question of laws:-
“(a) whether the Lower Appellate Court is correct in law in totally misconstruing Exhibits C3 and C4, Commissioner's Report and Plan as stated by the appellant herein in holding that there is an alternate access for the appellant to reach his land against the report and plan filed by the Commissioner?
(b) Whether the Ex.A1, Registered Sale Deed, dated 11.11.1963 clearly discloses the boundaries of the property purchased by the appellant with regard to the cart track as claimed by the appellant and that was not considered by the Court below as per law?
(c) Whether the Court below has not considered Section 6 of the Transfer of Property Act, 1882 in deciding the rental contract claimed by the appellant on the evidence available on records?”
28. The entire issue surrounds claim to use a pathway which runs https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 16 south from the Panchayat road which runs east to west in the northern side of the lands of the appellants. The pathway runs south and reaches the house of the appellants. The learned trial Judge had granted a decree in that regard.
29. The First Appellate Court had however set aside that decree holding that the appellants had an alternate way to reach their lands through another pathway which was to the south to east of their lands and reaches the Vaiyappamalai to Munjanoor road which runs north to south. The existence of the two pathways are not in dispute.
30. Heard arguments advanced by Mr.P.Valliappan, learned Senior Counsel for Mr. GRM. Palaniappan, leanred counsel for the appellants and Mr. G.Jagadish, learned counsel for the respondents.
31. Mr.P.Valliappan, learned Senior Counsel contended that the appellants' lands are situated in S.No. 129 of Munjanoor Village in Tiruchengode Taluk and just to the north of the lands, the first and second defendants in O.S.No. 489 of 1981 possessed lands and to the further north, there was a Panchayat road running east to west. It had been contended https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 17 that there was a pathway running sough from the said Panchayat road with its western boundary in S.No. 129 reaching the house of the appellants. It had been contended by the learned Senior Counsel that under Section 8 of the Transfer of Property Act, the transferor of a property would also normally transfer his existing rights over the property to the transferee. The learned Senior Counsel contended that the existence of the pathway had been very clearly stated by the Advocate Commissioner in his report. He stated that the first Appellate Court had over looked this portion of the report of the Advocate Commissioner but had placed reliance on yet another aspect pointed out by the Advocate Commissioner, namely the existence of another pathway to the south to east in S.No. 129 which touches the Vaiyappamalai to Munjanoor road which runs north to south on the eastern boundary. The learned Senior Counsel stated that the fourth defendant / respondent had exercise control over those particular lands. It had been contended by the learned Senior Counsel that the appellants have using the pathway running southwards to their property from the east to west Panchayat road to the north of their lands. The learned Senior Counsel therefore contended that the Judgment of the First Appellate Court should be interfered with and the Judgment of the Trial Court should be restored.
32. Mr.G.Jagadish, learned counsel for the respondents however https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 18 contested the said version of the learned Senior Counsel for the appellants. The learned counsel contended that the appellants had suppressed the fact that there was an alternate pathway to their lands. The existence of the alternate pathway had been pointed out by the Advocate Commissioner in his report. The learned counsel therefore contended that the appellants cannot seek exclusive right to use the suit pathway. The learned counsel further stated that even according to the report of the Advocate Commissioner, the suit path way was covered by Tharisal bushes and therefore could not be used. It was contended that the First Appellate Court had examined all aspects and that therefore, the Judgment and Decree of the First Appellate Court need not set aside.
33. I have carefully considered the arguments advanced and perused the material available on record.
Substantial Question No.1:
34. This questions revolves around interpretation of the reports and sketches of the Advocate Commissioner as as marked as Exs. C-3 and C-4. Even before examining Exs. C-3 and C-4, it would only be appropriate that the Court also examines Exs. C-1 and C-2. In the first report and sketch of https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 19 the Advocate Commissioner in Ex.C-1, the learned Advocate Commissioner had very clearly stated that there was a cart track pathway which reaches the house of the appellants and that it is well weatherbeaten and in use. The width is about 15 feet. Even in Ex.C-1, it had been noted that on the western edge, Tharisal bushes had grown but the fact is that there is a pathway which has been used by men, cattle and carts. Ex.C-2 is the rough sketch given by the Advocate Commissioner. In Ex.C-3 which was given about 2 months after Ex.C-1, the Advocate Commissioner had given the changes in the features after his first visit but had again reiterated the existence of the pathway which leads from the Panchayat Road to the house of the appellants. He had further stated that on the southern side, there is yet another pathway, but which is about 1 ½ feet wide and runs through the land of the appellants. It has been stated in the report that there is no evidence of cart track or marks are seen on the path or outside the foot path. It had been further stated that on both sides of the foot path grass had grown. This observation of the Advocate Commissioner had been noted by the First Appellate Court to deny the relief sought by the appellant.
35. One significant factor which has to be noted between the two pathways is that the suit pathway had a width of about 15 feet whereas the https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 20 pathway which had been stated to be the alternate pathway by the First Appellate Court has a width of 1 ½ feet which renders it practically unuseful for carts and cattle. It is only a foot path.
36. The Trial Court had correctly relied upon the report of the Advocate Commissioner in Exs. C-1 and the rough sketch in Ex.C-2. The existence of the pathway has not been denied or disputed. It had been affirmed by the Advocate Commissioner. The width of the pathway also makes it clear that it had been used not only by men and cattle but also by carts. I hold that the First Appellate Court had unfortunately misconstrued Exs. C-3 and C-4 holding that there was an alternate access for the appellants to reach their land. The alternate way must be in consonance with the existing way which was sought by the Appellants. It should also serve the purpose for which the appellants would put it to use. It must be convenient not only for men and cattle but also for carts. A foot path of 1 ½ feet would hardly be convenient for cattle and no cart can be taken though it. Therefore, even if there is an alternate pathway, I hold that the First Appellate Court had wrongly misconstrued the existence of a 1 ½ feet wide pathway to deny the appellants, the usage of the suit cart track. This question is therefore answered that the First Appellate Court had misconstrued Exs. C3 and C4 by holding that there was an alternate cart https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 21 track for the appellants when actually it was only an alternate foot path and not a cart track.
Substantial Question No.2:
37. This question revolves around the recital in Ex.A-1, the registered sale deed dated 11.11.1963 by which the first appellant had purchased his property. In Ex.A-1, the existence of the pathway had given as one of the boundaries. On the east of the property, there is a Panchayat road which runs south to north and to the north of the property, there is another Panchayat road running east to west. As a fact, this description of the property cannot be disputed. But the First Appellate Court had also considered the existence of two separate pathways and had held that the appellant could very well use the pathway to the south and east of his lands. I hold that this is an issue on fact and the only point which could be stated is that the pathway which runs to the north of the lands of the plaintiff had a width of 15 feet and the pathway which runs to the east of his lands has as a width of 1 ½ feet. To that extent, I hold that the First Appellate Court had misconstrued the concept of alternate pathway. Since the question as framed does not give rise to any substantial question in law, I hold that though the Second Appeal had been admitted on this issue, it is https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 22 only a question of fact and not a question of law which had been formulated. The question is answered accordingly that the appellants can never be called upon to use the alternate footpath which is a poor substitute for the existing suit pathway.
Substantial Question No.3:
38. This question of law surrounds interpretation of Section 6 of the Transfer of Property Act 1882. The learned Trial Judge had placed reliance on Section 8 of the Transfer of Property Act 1882 which is as follows:-
“8. Operation of transfer.— Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth...............”
39. Section 6 of the Transfer of Property Act, 1882 provides what https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 23 could be transferred, I hold that the question should actually revolve around Section 8 of the Transfer of Property Act, 1882 and not under Section 6 of the said Act. Unless the transferor had expressed that the easements annexed to the property are not transferred, such easements are actually transferred.
40. In Bishundeo Narain Rai and Others Vs. Anmol Devi and Others, reported in (1998) 7 SCC 498, it had been held as follows:-
“11. ...........Section 8 of the Transfer of Property Act declares that on a transfer of property, all the interests which the transferor has or is having at that time, capable of passing in the property and in the legal incidence thereof, pass on such a transfer unless a different intention is expressed or necessarily implied. A combined reading of Section 8 and Section 54 of the Transfer of Property Act suggests that though on execution and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on the terms and conditions embodied in the deed indicating the intention of the parties. It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be proved https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 24 by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Section 92 of the Evidence Act, 1872. ”
41. In the instant case, the appellant had purchased the property in the year 1963 and even in that sale deed, the existence of the pathway is stated. This path way runs southwards from the Panchayat road which runs east to west and is to the north of the lands of the appellant. This had been very clearly mentioned in the sale deed.
42. A further reading of the sale deed in Ex.A-1 shows that there has been a transfer of all rights and interest in the property for free enjoyment by the appellant. It also necessarily included the easements attached with the property. It is seen that the pathway is attached to the property and had not been created after the transfer of the property but was in existence even at the time of transfer of the property and had been mentioned in the sale deed in Ex.A-1. It is therefore a legal incident of interest which the transferor had when the property was conveyed to the appellant in the year 1963. That legal incidence was attached to the property and was existing https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 25 in the property and in this case, as an easementary right to use the pathway which existed and had actually been transferred to the first appellant. This aspect had been over looked by the First Appellate Court.
43. The right to use the pathway was implied by transfer of the property in the name of the first appellant by Ex.A-1. Even though there is an alternate pathway, it measures just 1 ½ feet. The appellant's right to use the suit pathway could never be extinguished since it is a legal incident of the interest which the transferor had when the property was conveyed.
44. I hold that the First Appellate Court had wrongly misconstrued the provision. The substantial question of law is answered that under Section 8 of the Transfer of Property Act, since the sale deed by which the appellant had purchased the property showed the existence of the pathway as boundaries the right to use the pathway, and the right and the interest on the pathway which the transferor had, was transferred to the first appellant under Ex.A-1 sale deed dated 11.11.1963. The substantial question of law is answered accordingly.
45. In view of the fact that it had been held that the first appellant had an existing right to use the pathway, I hold that the Judgment of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm ) 26 First Appellate Court has to be necessarily interfered with and is therefore set aside and the Judgment and Decree of the Trial Court is restored.
46. The Second Appeal stands allowed with costs.
Vsg 19.08.2025
Index :Yes/No
Internet:Yes/No
To
1. Sub-Court, Tiruchengode.
2. District Munsif Court at Tiruchengode.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2025 04:29:48 pm )
27
C.V.KARTHIKEYAN, J.
vsg
Pre-Delivery Judgment made in
S.A.Nos. 824 & 825 of 2009
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