KOSHE Vs. A NATARAJAN

JUDGEMENT

(1.) THE defendant in O.S.No.44 of 2006 on the file of the District Munsif Court, Alandur, is the appellant.

(2.) THE respondent/ plaintiff filed the suit for permanent injunction stating that the suit property and adjoining pathway on the east and property on the north and south originally belonged to Jesubatham and the total extent of property was admeasuring 60 feet and 90 feet. THE said Jesubatham sold the northern portion measuring 5400 square feet to D.S. Mathias and naming the Plot as Plot No.27-A and while selling the said extent he left the pathway on the eastern side measuring 90 feet in length north-south and 6 feet in breadth east-west, for having ingress and egress to the property in Plot No.27-B which is situate on the southern side of Plot No.27-A. Plot No.27-B was also sold by Jesupatham on the same day and in that sale deed also the pathway on the eastern side of the property in Plot No.27-A was mentioned for having ingress and egress to the Plot No.27-B. Later, D.S. Mathias divided the property, he purchased under the sale deed dated 19.12.1947 into two plots and sold one plot to one Krishnan Kutty and another plot to Thomas P.Ryan under two sale deeds dated 3.8.1978 and naming the property on the northern side as Plot No.27-A2 and southern side as Plot No.27-A1. Krishnan Kutty was the owner of Plot No.27-A1 and from him the plaintiff purchased the property. After purchase the plaintiff claims right over the pathway also and attempted to fence the property and that was obstructed by the appellant/ defendant. THErefore, the respondent/ plaintiff filed the suit for injunction stating that he has got every right to use the Plot No.27A-1 which was sold to him and having an extent of 60 feet East-West and 45 feet North-South.

(3.) THE trial Court on proper appreciation of facts and law dismissed the suit holding that the appellant /defendant has got a right of way through the passage measuring 90 feet North- South and 6 feet East-West and lying on the eastern side of the respondent/ plaintiff property and that was mentioned in the sale deeds dated 19.12.1947, 3.8.1978 and 2.3.1988 and the respondent/ plaintiff has no right to fence that portion so as to prevent the appellant/ defendant from using the path way. THE respondent/ plaintiff filed the appeal and lower appellate Court allowed the appeal holding that the pathway claimed by the appellant/ defendant was one of an easement of necessity and admittedly the appellant/ defendant and respondent/ plaintiff are having access through the road that was formed later on the western side known as Church Cross Street and therefore the easement of necessity was extinguished as the appellant has got another way to reach his house and easement of necessity can be claimed only when there is no other alternative passage and in this case it has been proved that there is alternative passage on the western side through Church Cross Street and hence the appellant cannot insist on the suit pathway to reach his house on the ground of easement of necessity after the formation of the road on the western side and granted the decree of injunction. Against the same, the Second Appeal is filed.