Dr. S.Kumar And Ors. vs S.Ramalingam

2. The plaintiff - respondent filed two suits, firstly, OS No. 2251 of 1985 claiming an injunction against the defendants from using a pathway shown as A B C D in the plaint and claiming exclusive right to use the said path. Another suit OS No. 9158 of 1986 was filed restraining the defendants from preventing the plaintiff from using the pathway to reach their land E F G H. 1

3. The learned trial court dismissed the suits on April 22, 1991 holding the defendants have right of necessity of access to their property over the pathway A B C D in the first suit. However, the First Appellate Court allowed the appeal on September 16, 1993 and granted injunction as prayed holding that there is no necessity of easement as the said defendant has access from the property of her husband which is on Mowbrays Road. The High Court has maintained the judgment and decree of the First Appellate Court vide judgment dated March 6, 2007.

4. The facts leading to the present appeal are that one C.L. Rajasekaran was the owner of big chunk of land on Mowbrays Road in the city of Chennai. He executed three separate sale deeds on different dates. The first sale deed was executed in favour of defendant No. 1 - B. Shivaraman on December 5, 1973 in respect of property measuring 3483.66 sq. feet. Another adjoining land was purchased by Lakshmi Shivaraman, wife of defendant No. 1, vide separate sale deed dated April 1, 1976, in respect of land measuring 1062 sq. feet. The plaintiff entered into an agreement for purchase of land measuring 3525 sq. feet with C.L. Rajasekaran on May 13, 1978 but the sale deed was executed on May 31, 1988 after a decree in a suit for specific performance was granted.

5. The sale of land to defendant No. 1 is abutting Mowbrays Road whereas the land purchased by defendant No. 2 is touching back of land purchased by defendant No. 1. The dispute is in respect of the passage over which plaintiff claims an exclusive right of use in terms of the sale 2 deed dated May 31, 1988 whereas defendant No. 2 claims access to land purchased by her on the strength of recitals in the sale deed in her favour and also the fact that she has been using such passage from the day of purchase.

examination, he admitted that he executed a sale deed in favour of one Bharatha Reddy in 1983 after leaving 16½ feet passage in between the properties of Bharatha Reddy and the respondents, now the appellants. The length of said passage is 106 feet and width 16 feet. He further admitted that from 1976, the second respondent was using land measuring 16 x 106 feet as her pathway.

16. The plaintiff has to maintain the 16 feet wide passage in any case in terms of the recital in his sale deed dated May 31, 1988. Therefore, if the defendant No. 2 or her transferees use the passage, then such use of passage by defendant No. 2 or her transferees cannot be said to be causing any prejudice to the plaintiff.

20. In view thereof, we find that the judgment and decree passed by the High Court suffers from manifest error and, thus, cannot be sustained in law. Accordingly, the appeals are allowed. The 16 feet x 103 feet passage adjoining the property of the defendants leading to the property of the plaintiff is reserved for the common use of defendant No. 2 and of the plaintiff. No costs.

………...…………..........................J. (L. Nageswara Rao) …….…….….................................J. (Hemant Gupta) New Delhi, July 16, 2019.