Venkatammal, v. Savithiriammal,

THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 15.12.2016 PRONOUNCED ON : 21.12.2016

CORAM

THE HONOURABLE MR. JUSTICE T.RAVINDRAN S. A.No.382 of 2011 1.Venkatammal 2.Madesh 3.Rajammal ..

Appellants Vs.

Savithiriammal ..

Respondent Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 13.12.2010 made in A.S.No.62 of 2009 on the file of the Court of the Principal Subordinate Judge, Krishnagiri, confirming the judgment and decree made in O.S.No.56 of 2000, dated 19.03.2008 on the file of the Court of the District Munsif, Krishnagiri.

For Appellants : Mr.M.V.Krishnan For Respondents : Mr.A.Muthuraman

JUDGMENT

Challenge in this second appeal is made by the defendants to the Judgment and decree dated 13.12.200 made in A.S.No.62 of 2009 on the file of the Principal Sub ordinate Court, Krishnagiri, confirming the judgment and decree dated 19.03.2008 made in O.S.No.56 of 2000 on the file of the District Munsif Court, Krishnagiri.

2. The suit has been laid by the plaintiff for declaration and permanent injunction.

3. The suit is in respect of a pathway. The plaintiff has filed a plaint plan and the same has been marked as Ex.A3. According to the plaintiff, she has purchased the property inclusive of the suit pathway from Arumugam under the sale deed dated 04.04.1994 and Arumugam in turn had purchased the said property inclusive of the suit pathway from one K.C.Narayanan under the sale deed dated 24.04.1986 and the above said sale deeds have been marked as Exs.A1 & 2 respectively. The Courts below have found that the suit pathway is referred to in Exs.A1 and 2. It is also found by the Courts below that the suit pathway is situated on the North of Rajaveethi and that Rajaveethi is running East-West and the suit pathway extends up to the plaintiff's house and that the plaintiff's house is facing the suit pathway.

The plaintiff as PW1 and Arumugam as PW2 have testified about the suit pathway, the purchase of the same under Exs.A1 and A2 and the enjoyment of the same as an access to reach the house property. It is also found by the courts below that the first defendant's house and the vacant portion belonging to the second defendant are situated adjacent to the suit pathway.

properties under the documents marked as Exs.B1 to 3. Admittedly, there is no reference about the suit pathway in Exs.B1 to 3. Therefore, it could be seen that the suit pathway had not been acquired by the defendants under their title deeds. Further, the first defendant examined as DW1 has also admitted during the course of evidence that the plaintiff's house is situated at the end of the suit pathway, which is running on the north of Rajaveethi and the house property of the plaintiff was originally owned and enjoyed by K.C.Narayanan for 50 to 60 years and she does not know whether Arumugam has purchased the property from K.C.Narayanan and she has further admitted that her house is situated to the West of the suit pathway.

Therefore, it could be seen that as admitted by DW1, the house property of the plaintiff is situated at the end of the suit pathway. DW2 the second defendant has also admitted the existence of the suit pathway and further deposed that the plaintiff's house is situated facing the suit pathway. Therefore, it could be seen that as admitted by both DWs1 and 2, the plaintiff's house is facing the suit pathway and is also situated at the end of the suit pathway. As also seen by the courts below, the evidence of DW3 cannot be accepted straight away as she is not a resident of the locality. Therefore, the courts below have disbelieved her version.

4. To substantiate that the suit pathway is in existence and the

same has been used by the plaintiff as an access to reach her house property, the plaintiff has examined as PW3. PW3 also in his evidence has deposed about the existence of the suit pathway and the plaintiff's access over the same to reach her house property. PW4 is the VAO, through him, FMB sketch has been marked as Ex.A7 and the Adangal has been marked as Ex.A8. From Exs.A7 & 8, it is noted by the courts below that the suit pathway has been located in survey No.40/34 and the same is classified as pathway in the revenue records. Further, as per Exs.A7 & 8, it could be seen that the plaintiff's house property is situated in survey No.40/36 and the first defendant property is situated in survey No.40/32 and the second defendant's property is located in survey No.40/35.

PW4 has deposed that the plaintiff has purchased her house property from Arumugam and the suit pathway located in 43/34 is the only access for the plaintiff to reach her house property and the property situated in 40/34 is shown as pathway in the Adangal and also in the FMB marked as Exs.A8 & 7 respectively and apart from the suit pathway, there is no other pathway for reaching the plaintiff's house property. Further, PW4 has also stated that there is no alternative pathway to the plaintiff on the eastern side of her house property and no such pathway is found to be in existence as per the revenue records.

the plaintiff to have access to the suit property. Therefore, the case of the defendants that the plaintiff is having another access to reach her house property situated on the eastern side as such cannot be accepted.

5. In this connection, DW1 has admitted that the way on the eastern side has been closed and also admitted that other than the suit pathway, there is no other pathway for the plaintiff to have access to her house property. Therefore, it could be seen that the suit pathway is the only way for the plaintiff to reach her house property. As seen earlier, though the first defendant's house and the portion belonging to the second defendant are situated adjacent to the suit pathway, they have not acquired any right over the suit pathway under their title deeds. Further, it has not been established by the defendants that they have right of access through the suit pathway to reach their respective properties.

6. The only issue that has been put forth by the appellant counsel is that the plaintiff at the best could only seek easementary right over the suit pathway and cannot lay any claim over the suit property as her own property or seek the declaration that she is entitled to have possessory right over the suit pathway. However, as

adverted to earlier, the plaintiff has purchased her property under Ex.A1 inclusive of the suit pathway. From the recitals found in Exs.A1 & 2, it could be seen that the suit pathway has been the only access for reaching the property comprised therein. Therefore, it could be seen that the suit pathway has been existence for more than 60 - 70 years. As seen earlier, evidence has been adduced in this case, both on the side of the plaintiff and the defendants that the pathway has been in existence for several years. That apart, the plaintiff during the cross of her evidence has clearly stated that she is claiming right over the suit pathway as she has been in possession and enjoyment of the same for having access to reach her house property. In such circumstances, when the plaintiff claims possessory right over the suit pathway, the contention of the defendants that the plaintiff should have sought only the easementary right over the suit pathway and not possessory right as such cannot be accepted.

7. The Courts below have rightly found that the plaintiff is entitled to seek declaration of her possessory right over the suit pathway based upon the evidence adduced in the matter. In such circumstances, it cannot be stated that the findings of the courts below for upholding the case of the plaintiff are misdirected against the evidence on record or perverse.

In conclusion, no substantial question of law is found to be involved in this second appeal. Accordingly, the second appeal is dismissed. No costs.

21.12.2016 Index : Yes/No Internet: Yes/No sms To

1. The Principal Subordinate Court, Krishnagiri.

2. The District Munsif, Krishnagiri.

T.RAVINDRAN,J.

sms Pre-delivery order in S. A.No.382 of 2011 21.12.2016 http://www.judis.nic.in