S.A.No.390 of 2023 IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 30.04.2026 PRONOUNCED ON : 20.07.2026 CORAM THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A.No.390 of 2023 and C.M.P.No.12164 of 2023 M.Amirdha Jothi ... Appellant Vs. 1.K.Daisy Rani 2.V.Shanmugam 3.J.Damodharan 4.D.Devarajan ... Respondents Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree of the learned Sub-ordinate Judge at Thiruvottiyur, dated 18.10.2022 passed in A.S.No.11 of 2022, partially allowing the appeal, confirming partially the decree and judgment of the District Munsif Court, Thiruvottiyur in O.S.No.248 of 2016 dated 30.08.2019. For Appellant : Mr.K.Prabhakaran For Respondents : Mr.R.Dhamodaran for R1 & R2 R4 – sd- No appearance R3 No such person. 1/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 J U D G M E N T The unsuccessful plaintiff is the appellant. She filed a suit seeking declaration of his right of access through 'B' schedule property to reach 'A' schedule property and also for injunction restraining the defendants 1 to 3 from obstructing the plaintiff's right to access through the 'B' schedule passage to reach 'A' schedule property. The plaintiff also sought for a declaration against the 4th defendant that the cancellation deed dated 02.04.2014, executed by the 4th defendant cancelling the earlier settlement executed by him in favour of the plaintiff was null and void. 2. The trial Court decreed the suit as prayed for. Aggrieved by the same, the defendants 1 to 3 preferred a first appeal and the same was partly allowed by dismissing the suit in respect of prayer (a) and (b) seeking declaration of right of access through 'B' schedule property and injunction. The judgment and decree of the trial Court insofar as the prayer (c) declaring the cancellation deed dated 02.04.2014 was null and void was affirmed. Aggrieved by the same, the plaintiff has come before this Court. 2/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 3. According to the plaintiff, the 4th defendant originally owned 47 cents of agricultural land in S.Nos.12/24 and 12/7G in the suit village. He sold an extent of 10440 sq.ft., on the Western side to the 1st defendant under Ex.A1 dated 15.09.2006. While selling the Western side portion to the 1st defendant, the 4th defendant retained the rear portion on the Eastern side. He has also earmarked a passage to reach the property on the Eastern side. The passage portion on the Southern side of the Western portion was not sold to the 1st defendant. Even in the sale deed dated 15.09.2006, in the schedule of property, the Southern boundary of the property sold to 1st defendant was described as passage earmarked for having access to plots. Subsequently, the property retained on the Eastern side was settled by 4th defendant in favour of the plaintiff under registered settlement deed dated 10.09.2007 which has been marked as Ex.A2. The property covered by settlement deed has been shown as 'A' schedule property. The passage for reaching 'A' schedule property has been shown as 'B' schedule property. 4. It was also stated that B' schedule property was the only access to reach 'A' schedule property and the plaintiff has been enjoying 'A' schedule property by using 'B' schedule property as passage from the date of purchase. The second defendant, who is the father of the first defendant 3/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 protested usage of 'B' schedule property by the plaintiff. The third defendant, who is the brother's son of the second defendant also joined hands with the second defendant in obstructing the plaintiff's right of user over the 'B' schedule property. It is also stated that the passage starts from Manali Road on the Western side leads to the land of the first defendant and the plaintiff. The plaintiff wanted to sell the property settled in her favour and hence, applied for Encumbrance Certificate on 16.12.2016. Only thereafter, she acquired the knowledge about the cancellation of the settlement deed by the 4th defendant by cancellation of deed dated 02.04.2014 which has been marked as Ex.A6. Since unilateral cancellation of settlement deed by 4th defendant was invalid, the present suit has been filed seeking the above said relief. 5. The contesting defendants 1 to 3 filed a written statement and resisted the suit mainly on the ground that the 4th defendant originally owned 54 cents of land [47 cents in S.No.12/24 and 7 cents in S.No.12/7G] in two different survey numbers and the same were not adjacent or contiguous, but situated at different locations. The allegation in the plaint as if 4th defendant sold 10440 sq.ft. of land in S.Nos.12/24 and 12/7G was denied and it was the case of the defendants that the said extent of land situate only in 4/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 S.No.12/24 but not in S.No.12/7G. It was further pleaded by the defendant that 4th defendant earmarked a passage on the Southern side of S.No.12/24 which was not sold to the first defendant to reach the property retained by him on the Eastern side. 6. Further, it was averred by the defendants 1 to 3 that passage was confined to S.No.12/24 and it was never extended to the adjacent land on the Western land in S.No.12/23 to reach the Manali Salai on further West. It was also stated that the length and breadth of the passage was not at all mentioned in the document relied on by the plaintiff and hence, the plaintiff was not justified in claiming a passage with the length of 33.8 metres in East-West and 5 metres in North-South. It was also stated that the property settled in favour of the plaintiff situated in two survey numbers in S.Nos.12/24 and 12/7G, which was situated apart. Therefore, according to the defendants, four boundaries given in the settlement deed executed in favour of the plaintiff as if both the parcels of the land situate within four boundaries mentioned in the deed was not correct. The defendants specifically pleaded that the land situate on the Western side of the property owned by the 4th defendant in S.No.12/23 belonged to one Kulothungan and the plaintiff seeks right of passage in the property belonged to the said 5/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 Kulothungan and in such circumstances, the suit filed by the plaintiff without impleading the said Kulothungan was bad for non-joinder of necessary party. The defendants also disputed the field map produced by the plaintiff as tampered one. On these pleadings, the defendants sought for dismissal of the suit. 7. Before the trial Court, the son of the plaintiff was examined as P.W.1, and through him, 9 documents were marked as Ex.A1 to Ex.A9. On behalf of the defendant, 3rd defendant was examined as D.W.1 and through him five documents were marked as Ex.B1 to Ex.B5. The advocate commissioner's report and plan have been marked as Ex.C1 and Ex.C2. 8. The trial Court, on consideration of evidence available on record, came to the conclusion that the plaintiff established her case and decreed the suit as prayed for. Aggrieved by the same, the defendants 1 to 3 filed the first appeal in A.S.No.11 of 2022 on the file of the Sub Court, Thiruvottiyur. The first appellate Court, on re-appreciation of evidence available on record, came to the conclusion that the plaintiff failed to establish her case in respect of right of access over the suit 'B' schedule property and hence, partly allowed the appeal by dismissing the suit in 6/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 respect of declaration and injunction regarding the suit 'B' schedule property. The findings of the trial Court regarding the invalidity of the cancellation deed dated 02.04.2014 were affirmed. Aggrieved by the said judgment and decree, the plaintiff come by way of this Second Appeal. 9. The learned counsel appearing for the appellant/plaintiff would contend that the suit 'B' schedule property is the only access to the suit 'A' schedule property settled in favour of the plaintiff and hence, the first appellate Court committed an error in dismissing the relief regarding the passage. He further submitted that the first appellate Court ought not to have rejected the Advocate Commissioner's report and plan without examining the Commissioner. 10. Per contra, the learned counsel appearing for the respondents 1 and 2 would submit that the plaintiff failed to give proper description of the property and if the boundaries mentioned in the plaint have been accepted as correct, the portion of the property in S.No.12/23 belonged to the third party Kulothungan will also be come with the suit 'B' schedule property and therefore, the present suit filed by the plaintiff without impleading the said Kulothungan is not at all maintainable. The learned 7/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 counsel further submitted that the first appellate Court based on the proper appreciation of evidence available on record came to the conclusion that the plaintiff failed to give proper description of the property and hence, negatived the prayer for declaration and injunction. 11. This Court heard the submissions made by the learned counsel appearing on either side and perused the materials available on record. 12. The plaintiff claims right over the suit 'A' schedule property and the right of access to suit 'A' schedule property through suit 'B' schedule property by virtue of a settlement deed dated 10.09.2007 marked as Ex.A2. A close scrutiny of the above schedule of property in Ex.A2 settlement deed, as extracted in the judgment of the first appellate Court, would indicate that the settlor 4th defendant herein owned 54¼ cents in two survey numbers viz., 12/7G and 12/24. v He owned 7 ¼ cents in S.No.12/7G and 47 cents in S.No.12/24. Under a settlement deed, he settled 30¾ cents of land in the above mentioned survey numbers, which situated on the Eastern side of property sold to the first defendant Daisy Rani. Therefore, it is clear that the plaintiff got right over the lands situated in S.Nos.12/24 and 12/7G alone 8/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 under the settlement deed. A perusal of FMB sketch for S.No.12 included in the typed set of papers would indicate that S.No.12/24 and S.No.12/7G are situated apart and they are not contiguous. Therefore, the four boundaries given in the settlement deed in favour of the plaintiff as if both the survey numbers are contiguous appear to be not correct. Hence, in the settlement deed executed in favour of the plaintiff, the property covered by the settlement deed was not properly described. It is also seen from the FMB sketch, S.No.12/24 situate on the Eastern side. On its immediate West there is S.No.12/23. On further West lies the road portion. In fact, the topography of suit property which could be gathered from FMB sketch was admitted by plaintiff's side witness P.W.1. The relevant portion of his evidence reads as follows: “th.rh.2 ehd;fhk; gpujpthjp thjpf;F v ml;ltiz nrhj;ij jhd nrl;by;nkz;l; vOjpf; nfhLj;jJjhd;. mjpy; ,uz;L nrhj;Jf;fs; fhl;lg;gl;Ls;sJ xd;W Gy vz; 12/7[p y; VNofhy; nrz;Lk; kw;nwhd;wpy; Gy vz;. 12/24 y; 23 1/2 nrd;Lk; Mf nkhj;jk; Kg;gNjKf;fhy; nrz;Lk; th.rh.2 y; jhd nrl;by;nkd;l; nra;ag;gl;lJ vd;why; rupjhd;. Nkw;gb ,uz;L ,lq;fSk; ntt;NtW ,lj;jpy; cs;sJ vd;why; rupjhd;. ,uz;Lk; ,ilntsp 500 mbf;F Nky; ,Uf;Fk;. Nkw;gb ,uz;L nrhj;Jf;Fk; ePs mfyk; jdpj;jdpNa Fwpg;gpltpy;iy. Gy vz;. 12/24 f;F kl;LNk ehw;Gu vy;iyfs; fhl;lg;gl;Ls;sJ vd;why; rupjhd;. 12/7[pf;F ehw;Gu 9/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 vy;iyfs; fhl;ltpy;iy vd;why; rupjhd;. th.r.2 y; njw;F gf;fk; top ghij kl;LNk fhl;lg;gl;Ls;sJ. ePs mfyk; fhl;lg;gltpy;iy. me;j top ghij ve;j rhiyapy; NrUfpwJ vd;W fhl;ltpy;iy. tof;Fiuapy; nrhj;J tptuj;jpy; gp ml;ltidapy; njw;F gf;fk; top ghijf;F ePs mfyk; fhl;lg;gl;Ls;sJ. Nkw;gb topghij jhd nrl;by;nkd;by; Fwpg;gpltpy;iy. mij vt;thW vLf;fg;gl;lJ vd;why; ehq;fs; mse;Njhk;. Gy vz;.12/22 ,uz;lhk; gpujpthjp rz;Kfj;jpw;F nrhe;jkhd Gy vz;.12/23 jkpourp> FNyhJq;fd; vd;gtUf;Fk; nrhe;jkhdJ vd;why; rupapy;iy rz;Kfj;Jf;F nrhe;jkhdJ MFk;. 12/24f;F Nkw;Nf rhiyf;Fk; vq;fs; ,lj;jpw;Fk; ,ilapy; Gy vz;.12/23 ,lk; cs;sJ vd;why; rupjhd;.” 13. Therefore, it is clear that P.W.1 categorically admitted that in between the road portion and the suit survey No.12/24, there is a different S.No.12/23. However, in the plaint description, the said S.No.12/23 has not been shown as Western boundary of the suit property. On the other hand, the road portion which is situated on the further West of S.No.12/23 has been shown as Western boundary. Therefore, it is clear that the plaintiff by giving wrong boundary attempts to claim right over the property situate in S.No.12/23, which belonged to a third party. P.W.1 also admitted that the plaintiff get 7 ¼ cents of land in S.No.12/7G and 27 ½ cents of land in S.No.12/24 and both these survey numbers are situate in different places and the distance between these two survey numbers are nearly 500 meters. He 10/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 also admitted that the linear measurement of the passage was not been mentioned in the settlement deed. From the admission of P.W.1 and the FMB sketch, it is clear that the plaintiff failed to give proper description of the suit property. 14. The first appellate Court in it's judgment categorically observed that though the plaintiff purchased two pieces of property in 2 different survey numbers, the Advocate Commissioner failed to identify the two pieces of land in two different survey numbers and the same have not been properly described in the report. Therefore, according to the first appellate Court, the Advocate commissioner's report and plan are not useful to identify the property. P.W.1 also admitted that as per Ex.A4, FMB sketch, the passage on the Southern side of suit S.No.12/24 has got length of 17.8 meters and breath of 5 meters. However, in the plaint 'B' schedule property, the length and breadth of the passage has been mentioned as 33.8 meters into 5 meters. Therefore, this Court has no hesitation in coming to the conclusion that the plaintiff failed to give proper description of suit 'B' schedule property and in the absence of correct boundaries and linear measurement, she is not entitled to get a declaration and injunction. The first appellate Court pointed out the defects in the description of the property 11/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 in the plaint schedule and negatived the prayer for declaration and injunction in respect of 'B' schedule passage. I do not find any error or perversity in the said conclusion of the first appellate Court. 15. As far as prayer (c) is concerned, it is settled law unilateral cancellation of settlement deed is not valid and hence, the first appellate Court rightly affirmed the findings of the trial Court. 16. In the light of the above discussion, I do not find anything to interfere with the findings of the first appellate Court negativing the relief of plaint prayers (a) and (b) seeking declaration and injunction in respect of the 'B' schedule property. The appellant has not made out any substantial question of law for consideration in the Second Appeal and hence, the same is dismissed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 20.07.2026 Index : Yes/No Speaking order:Yes/No Neutral Citation:Yes/No vsm 12/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 To 1. The Sub-ordinate Judge, Thiruvottiyur. 2. The District Munsif Court, Thiruvottiyur 3. The Section Officer VR Section, High Court, Madras. S.SOUNTHAR, J. vsm Pre-DeliveryJudgment made in 13/14 https://www.mhc.tn.gov.in/judis S.A.No.390 of 2023 S.A.No.390 of 2023 20.07.2026 14/14 https://www.mhc.tn.gov.in/judis