B SIVARAMAN Vs. S RAMALINGAM

JUDGEMENT

(1.) THE legal representatives of the defendants are the appellants in the second appeal. THE respondents filed a suit against the defendants in O. S. No. 2251 of 1985, against the father and mother of the appellants, who were the sole defendants for an injunction from using a pathway shown as A, B, C, D in the plaint plan, claiming exclusive right. Likewise, he has filed another suit in O. S. No. 9158 of 1986 from preventing the plaintiff from using the A, B, C, D pathway to reach the land E,f,g,h. THEre was a common trial of both the suits and ultimately the Trial Court has dismissed both the suits, as against which the plaintiff filed the first appeal in A. S. No. 362 of 1991 and 363 of 1991 respectively and both the appeals were taken together and allowing both the appeals, the First Appellate Court has granted an order of injunction, as prayed for in both the suits by the plaintiffs. It is as against the said judgement and decree of the first Appellate Court, the defendants have filed the above second appeals. Pending the above said second appeals, since the appellants died, their legal representatives have been brought on record.

(2.) WHILE admitting the second appeal, the following substantial question of law was framed by this Court - "is not a purchaser of a property, which forms part of a larger extent of land entitle for passage to have ingress and egress to his property as a matter of necessity under Section 13 of the Easement Act, even though the neighboring owner may be that person"s husband. "

(3.) ACCORDING to the plaintiff, the agreement was entered on 13. 05. 1978 and thereafter the plaintiff was put in possession on 01. 10. 1979. It was also his case that subsequently, by mutual agreement between the plaintiff and his vendor C. L. Rajasekaran, the width of the pathway was to be treated as 16 ft. Since the sale was not completed within the stipulated time, the plaintiff has filed the suit in O. S. No. 1632 of 1980 in the City Civil Court for specific performance and the suit was decreed on 13. 04. 1983. ACCORDING to the plaintiff the decree also provides for 16 ft. passage to the plaintiff as his exclusive passage. After the plaintiff"s vendor C. L. Rajasekaran filed an appeal in this Court in A. S. No. 613 of 1983, there was a compromise entered and ultimately the plaintiff"s vendor has executed a sale deed in favour of the plaintiff on 31. 05. 1988, which was marked as Ex. A. 18. It is the further case of the plaintiff that under the sale deed executed by the common owner C. L. Rajasekaran in favour of the first and second defendants under the sale deeds dated 05. 12. 1973 and 01. 04. 1976 no right of passage was given to the defendants in respect of the suit passage. The plaintiffs also state that the common owner has also sold the remaining extent in plot No. 7a of the Eastern side to one Mrs. Barathi Reddy. Even though the suit passage exclusively belongs to the plaintiff, the first defendant has opened an entrance illegally to reach his plot and both the defendants have started using the said passage, which resulted in the plaintiff filing the above suits for injunction.