MANGAYARKARASI Vs. VEERAPPAN AMBALAM

JUDGEMENT

(1.) THE plaintiff who lost before both the courts below is the appellant. She filed suit O.S.No.406 of 1980 before the District Munsif's Court, Pattukottai, for permanent injunction on the following averments: THE suit property of an extent of 12 cents in S.No.86/ 13 in Thuravikkadu Village with 13 coconut trees and 1 jack fruit tree, which was fenced on three sides, originally belonged to one Saroja from whom she bought it on 20.7.1997 under Ex.A-1. She was in possession eversince. THE 15 cents immediately north of the suit property belonged to her late husband and she was in possession of that property also. THE total extent of the suit survey number was 59 cents. THE balance extent of 32 cents was in the possession of the first respondent. When she attempted to erect granite and barbed wire fencing, respondents 1 to 3 objected and wanted the suit properties to be sold to them. Since the appellant refused, the respondents got enraged and damaged the boundary stones in the suit properties. THE first respondent was the father of respondents 2 and 3 and the fourth respondent was a cohort of the respondents. THE respondents had no right or possession. THE suit was therefore filed.

(2.) THE first respondent filed a written statement and the same was adopted by the other respondents. In the written statement it is contended as follows: THE parties to the suit did not measure the properties as per the sale deed in their favour, but they fixed the boundaries. One Raman Ambalam and Veerasamy Ambalam were in possession of the suit survey number. THEy sold the northern 15 cents. THE western portion of the suit property was being used as cart track. It was necessary for access to Aranthangi-Pattukottai Road. After the death of Raman Ambalam, his son Veerasarny was in occupation of the suit survey number and he was using the cart track. Under Ex.B-2, dated 11.5.1968 Veerasarny sold the southern 33 1/3 cents to the first respondent. THE first respondent put up a construction and was in occupation. THE middle portion was sold by Veerasarny to Saroja under Ex.A-3, dated 11.7.1968. Even after the purchase by the appellant there were no bunds or fences demarcating the properties. THEre was no passage fixed on the southern side. THE first respondent had no access to going to Aranthangi-Pattukottai Main Road. It was a case of easement of necessity. THE appellant wanted the first respondent to sell the property purchased by him. As he was not willing, the present suit came to be filed to force the first respondent to come to terms. THE appellant was not entitled to any relief.

(3.) ALL the time of admission the following substantial question of law was raised for consideration in the Second Appeal: "Whether notwithstanding the failure to plead a right of easement of necessity, the same can arise by inference""