Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 359 (MAD)

P. Uthirapathy v. Kaliyaperumal

2012-01-24

T.RAJA

body2012
Judgment :- 1. The appellant herein filed a suit as plaintiff in O.S.No.702 of 2004, on the file of the Additional District Munsif, Mayiladuthurai, seeking for permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the property. 2. The facts giving rise to the present appeal are as follows:- Appellant is the plaintiff and the respondents are defendants. Plaintiff and second defendant are brothers, born to Periyasamy Thevar through his second wife, while the first defendant-Kaliyaperumal through his first wife. The plaintiff and the second defendant are sons of Veerammal, who died in the year 1994. 3. It is seen from the plaint filed by the plaintiff that as per the registered partition deed, that took place on 23.07.1966, among the plaintiff and the defendants and Veerammal. The 'C' Schedule property was allotted to the plaintiff and the second defendant jointly. The 'A' Schedule property was allotted to Veerammal and the 'B' Schedule property was allotted to first defendant. The 'C' Schedule property was subsequently divided between the plaintiff and the second defendant. As per the agreement, an extent of 50-2/3 in the southern side was allotted to the plaintiff and 51 cents was allotted to the second defendant, which is on the northern side. The plaintiff was having access through the said property to his land which is on the southern side. But, due to the collusion between the defendants, as they are obstructing the right of access to go to his property from the road, the plaintiff has filed the suit. The properties allotted to the plaintiff and the second defendant are situated immediately on the east of the road. When there was a karaolai arrangment on 27.07.1989, that took place between the plaintiff and the second defendant, as per the said arrangement, the plaintiff was allotted 50 2/3 cents and the second defendant was allotted 51 cents. To the west of 50 2/3 cents , the main road is in existence, from which, the plaintiff is having right of access to his property. Without there being access to the plaintiff to go to his property, he cannot reach the suit place. Therefore, he has filed a suit. 4. A detailed written statement was filed by the first defendant and the same was also adopted by the second defendant. Without there being access to the plaintiff to go to his property, he cannot reach the suit place. Therefore, he has filed a suit. 4. A detailed written statement was filed by the first defendant and the same was also adopted by the second defendant. But the first defendant took a stand that he was not a party to that deed, 27.07.1989. Therefore, if any arrangement was made, the same would not bind him. While disputing the correctness of the boundary given in the claim that they are not correct, specifically mentioned that the plaintiff is not having any right, title, interest and possession over the property of the defendant to have access, so as to reach his property. However, para 6 of the written statement mentioned that, without prejudice to the above said contention, the defendant is willing to allow the plaintiff and the second defendant to use the property of the first defendant, that is situated further east of the property of this defendant, only out of courtesy. 5. However, when the matter was taken up before the trial Court, the trial Court, without considering the prayer made by the plaintiff, has held that there is also an alternative pathway on the other side to reach the plaintiff's 'C' Schedule property and accordingly, dismissed the suit. Assailing the said finding, the plaintiff filed an appeal before the first appellate Court. The learned first appellate Court, by affirming the findings and reasoning given by the trial Court, upheld the judgment and decree passed by the trial Court, by holding that the plaintiff has already sold away his property to some other person, therefore, he cannot maintain the suit for right of access through defendants' property. Aggrieved by the same, the plaintiff has filed the present Second Appeal. 6. At the time of admission, the following substantial questions of law were framed for consideration:- i) Whether the lower appellate Court erred in law in dismissing the suit when the first defendant admits that he had allowed the plaintiff to use his property as a way to reach the plaintiff's property? ii) Whether the lower appellate Court erred in law in dismissing the suit when Ex.A1, partition deed provides for 4 feet pathway for the properties allotted to the plaintiff and the defendants? ii) Whether the lower appellate Court erred in law in dismissing the suit when Ex.A1, partition deed provides for 4 feet pathway for the properties allotted to the plaintiff and the defendants? iii) Whether the owner of the land situate adjacent to the road can prevent the owners of the land situate for away from the road to have access to their lands from the road? 5. Though notices were issued, no one appeared for the respondents/defendants. 6. Learned counsel appearing for the appellant/plaintiff, by showing to this Court the relevant portion of the pleadings before the Courts below, has submitted that when the parties are brothers and the first respondent/first defendant has admitted in the written statement that there is no any other access to reach the property of the plaintiff, Courts below have committed material irregularity in giving different finding that the plaintiff has sold away some of his properties to one Rajendran and in view of the fact that the said Rajendran, has already become the owner of the said property, unless the said Rajendran comes before this Court seeking right of access, the plaintiff cannot maintain the suit. To prove the said finding, he has filed an affidavit, clearly mentioning that even now the property to which he has sought the right of access is still with him. 7. It is seen from the affidavit filed by the appellant/plaintiff that, after the expiry of lease given to one Rajendran, the said Rajendran has surrendered the land to the appellant. Since then, he has been in possession and enjoyment of the lands. Therefore, it has been contended by the learned counsel for the appellant that he has no access to Item No.17 of 'C' Schedule property and except through Item No.17 of the 'B' Schedule property, the plaintiff cannot reach his land. Further, it was submitted that he cannot cultivate his lands, unless he has access in the 'B' Schedule property of Item No.17. 8. It is seen that this Court, at the time of admission, granted interim injunction and the same has not been disturbed. The defendants/respondents are own brothers of the plaintiff/appellant, therefore, they have not taken any steps to vacate the order of injunction granted by this Court on 23.02.2007 and also not chosen to appear before this Court, inspite of service of notice. This shows that the defendants/respondents do not oppose the prayer. The defendants/respondents are own brothers of the plaintiff/appellant, therefore, they have not taken any steps to vacate the order of injunction granted by this Court on 23.02.2007 and also not chosen to appear before this Court, inspite of service of notice. This shows that the defendants/respondents do not oppose the prayer. Therefore, by taking into account the relationship of the parties that they are brothers, this Court, accepting the written statement filed by the first defendant and adopted by the second defendant before the learned trial Court that they are willing to allow the plaintiff to use the property of the first defendant to go to their lands, that is situated further east of the property, without upsetting the findings of the Courts below on the basis of the pleadings made by the parties, holds that the plaintiff is entitled to have the right of access to go to his lands from the road situate on its western side. It is also made clear that right of access is available only to the plaintiff, not to any tenant or leaseholder. 9. In the result, the Second Appeal is disposed of. No costs.