S.A.(MD)Nos.230 and 236 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved On:16.09.2025

Pronounced On: 06.01.2026

CORAM

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

S.A.(MD)Nos.230 and 236 of 2021

and

C.M.P.(MD).Nos.3312 and 3316 of 2021

S.A.(MD).No.230 of 2021

1.The State of Tamil Nadu,

Rep by the District Collector,

Kanyakumari District at Nagercoil.

2.The District Forest Officer,

Kanyakumari District at Nagercoil.

3.The Range Officer,

Azhagiapandiapuram Range,

Kanyakumari District.

4.The Tahsildar,

Thovalai Taluk,

kanyakumari district. Appellants

Vs.

Bino Deva Kumar Respondent

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S.A.(MD)Nos.230 and 236 of 2021

PRAYER:- Second Appeal has been filed under Section 100 of Code of

Civil Procedure, against the judgment and decree dated 25.10.2019 in

A.S.No.49 of 2015, on the file of the learned Additional district and

Sessions Judge, Nagercoil which partly reversed the judgment and decree

dated 31.07.2015 passed in O.S.No.1 of 2014 on the file of the learned

Special Court, (Forest Offence Cases), Nagercoil and allow this Second

Appeal.

For Appellants:Mr.Veera Kathiravan

Additional Advocate General

assisted by

:Mr.M.Muthu Manikkam

Government Advocate (Civil Side)

For Respondent:Mr.K.P.Narayana Kumar for

: Mr.A.Balakrishnan

**

S.A.(MD).No.236 of 2021

1.The State of Tamil Nadu,

Rep by the District Collector,

Kanyakumari District at Nagercoil.

2.The District Forest Officer,

Kanyakumari District at Nagercoil.

3.The Range Officer,

Azhagiapandiapuram Range,

Kanyakumari District.

4.The Tahsildar,

Thovalai Taluk,

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S.A.(MD)Nos.230 and 236 of 2021

kanyakumari district. Appellants

Vs.

Bino Deva Kumar Respondent

PRAYER:- Second Appeal has been filed under Section 100 of Code of

Civil Procedure, against the judgment and decree dated 25.10.2019 in

A.S.No.129 of 2018, on the file of the learned Additional district and

Sessions Judge, Nagercoil confirming the judgment and decree dated

31.07.2015 passed in O.S.No.1 of 2014 on the file of the learned Special

Court, (Forest Offence Cases), Nagercoil and allow this Second Appeal.

For Appellants:Mr.Veera Kathiravan

Additional Advocate General

assisted by

:Mr.M.Muthu Manikkam

Government Advocate (Civil Side)

For Respondent:Mr.K.P.Narayana Kumar for

: Mr.A.Balakrishnan

C O M M O N J U D G M E N T

The Government, which is the second defendant in O.S.No.1 of

2014, has preferred the present appeal challenging the decree passed in

O.S.No.1 of 2014 and the modified decree passed in A.S.No.129 of 2018.

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S.A.(MD)Nos.230 and 236 of 2021

2.For the sake of convenience and to avoid repetition, the parties

are hereinafter referred to according to their respective ranks as assigned

before the trial Court.

3.The plaintiff is the owner of the suit property known as Lower

Victoria Estate. The said estate is situated in R.S.No.781/1 and R.S.No.

782/2 of Azhagiapandipuram Village, measuring an extent of 11 acres

and 46 cents. In the said land, rubber trees, two sets of tea plantations,

silver oak trees, and jack trees are standing. The suit property was

acquired by the plaintiff under a registered settlement deed dated

16.03.2007. For the said property, B-Schedule property is a pathway

known as Nadugani Thadam, also referred to as Nadugani Thadam.

The said Nadugani Thadam has been in existence for more than 200

years and has been used to reach the A-Schedule property. Even prior to

the plaintiff’s purchase, the pathway existed in the suit land and was the

only means of access to the A-Schedule property. The plaintiff was

employing about 90 workers along with their family members in the

estate. Except Nadugani Thadam pathway, there is no other access to

reach the plaintiff’s land.

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S.A.(MD)Nos.230 and 236 of 2021

3.1.In the year 1991, the entire B-Schedule pathway was washed

away due to floods. Since then, the plaintiff has been trudging along the

pathway with great difficulty and without any renovation. After the flood,

the pathway became rugged and extremely difficult to use without

maintenance. The Nadugani Thadam has a width of 6 feet and a length

of about 5.4 kilometres.

3.2.Therefore, the plaintiff made representations to the

Government authorities seeking to removal of Nadugani Thadam. As

there was no response, the plaintiff issued a statutory notice under

Section 80 of the Code of Civil Procedure, which evoked no reply.

Consequently, the plaintiff filed the suit seeking the reliefs of declaration

and mandatory injunction in respect of the B-Schedule pathway.

3.3.The defendants, namely, the Government officials including

the Forest Department, filed a written statement admitting that a pathway

had existed from time immemorial, and it is now known as Nadugani

Thadam, but contended that its width was only 6 feet and not 10 feet. It

was further stated that the Forest Department had not used the pathway

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S.A.(MD)Nos.230 and 236 of 2021

since 1961, that it was not a public pathway, and that the plaintiff had no

right to seek renovation. The defendants contended that the pathway was

almost abandoned, unfit for use, and that the plaintiff was a trespasser

with no legal right of easement or declaration against the Government.

3.4.Upon considering the pleadings and evidence, the trial Court

framed necessary issues and partly decreed the suit, declaring the

plaintiff’s right to use the pathway, while granting a mandatory

injunction permitting renovation at the plaintiff’s cost.

3.5.Aggrieved by the same, both the Government and the plaintiff

filed first appeals before the Principal District Court, Nagercoil,

Kanyakumari District. The first appellate Court dismissed the

Government appeal, confirmed the plaintiff’s right of usage over the

pathway, and upheld the decree of mandatory injunction, permitting

renovation to the extent of 6 feet width and 2.5 kilometres length.

3.6.Aggrieved thereby, the Government has preferred the present

Second Appeal, which has been admitted on the following substantial

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S.A.(MD)Nos.230 and 236 of 2021

questions of law:

(1) Whether the Courts below were correct in

holding that the B schedule property is in earth?

(2) Whether the Courts below were right in

holding that the B schedule property is the only pathway

to reach the plaintiff's property?

(3) Whether the Courts below were right in

granting declaration in respect of B schedule property in

favour of the plaintiff?

(4) Whether the Courts below were right in

granting permanent injunction in respect of B schedule

property in favour of the plaintiff?

(5) Whether the Courts below were right in

granting the relief of mandatory injunction in favour of

the plaintiff?

(6) Whether the Courts below were right in

considering the correct extent of the B Schedule

property by comparing the Advocate Commissioner's

Report?

4.The learned Additional Advocate General, assisted by the

learned Government Advocate, would contend that the plaintiff’s claim is

not legally sustainable as the suit property falls within a Reserved

Forest. It is argued that the plaintiff himself admitted that the pathway

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S.A.(MD)Nos.230 and 236 of 2021

was washed away in the floods in the year 1991 floods and therefore no

declaration or mandatory injunction could have been granted.

4.1.It is further contended that the first appellate Court failed to

consider that the area falls within a protected forest zone governed by the

Forest (Conservation) Act, 1980, and that no individual can claim a

right of pathway, including an easement, over forest land.

4.2.The learned counsel would further submit that in view of the

provisions of the Wildlife Protection Act, 1972, the suit itself is not

maintainable and therefore prays that the judgments of the Courts below

be set aside and the suit be dismissed.

5.The learned counsel for the respondent submitted that the

records of the Land Revenue / Appeal Board disclose that the pathway

had been in existence even prior to 1961, and that the said pathway got

damaged during the floods in the year 1991, after which it has been used

without renovation. Representations were submitted to the District

Administration, and under the Right to Information Act, the authorities

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S.A.(MD)Nos.230 and 236 of 2021

replied that, subject to exigencies, renovation works would be

undertaken.

5.1.These materials were considered by both the Trial Court and

the First Appellate Court, which granted the relief of declaration and

consequential injunction. Both the Courts, on proper appreciation of facts

and documentary evidence, including the evidence of the Forest

Department, recorded concurrent findings that the pathway existed prior

to 1961 and that the plaintiff was entitled to use the same. It was further

held that without access through the pathway, the plaintiff could not

enjoy or manage the estate situated within the reserve forest.

5.2.It was further submitted that similar roads have been laid and

maintained for other plantation units and estate holders, and that the

authorities have adopted different standards for different persons. Taking

into account the factual situation, the First Appellate Court permitted the

plaintiff to carry out renovation work to the extent of 6 feet in width and

about 2.15 kilometres in length, and submitted that such findings were

purely factual and did not warrant interference.

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S.A.(MD)Nos.230 and 236 of 2021

5.3.With respect to the applicability of the Wildlife Protection

Act, 1972, it was contended that even as per the grounds of appeal,

vehicular usage within the reserve forest is permitted for purposes of

maintenance and management of forest areas, and therefore there is no

absolute bar to the petitioner using motor vehicles. It was also pointed

out that several other persons similarly situated in the estate and reserve

forest areas have been permitted such usage.

5.4.In reply, the learned Additional Advocate General, appearing

for the appellants, contended that the plea of parity was never raised

before the Trial Court, nor was there any pleading to that effect, and

therefore the said contention is liable to be rejected. It was further

submitted that in view of the provisions of the Wildlife Protection Act,

the respondent cannot claim, as a matter of right, either for renovation of

the pathway or for the use of motor vehicles within the reserve forest.

5.5.The learned counsel for the respondent, in rejoinder, submitted

that without the use of motor vehicles, it would be impossible to manage

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S.A.(MD)Nos.230 and 236 of 2021

and enjoy the forest land. It was further contended that for transporting

agricultural and forest produce such as pepper and other yields, use of

the road is indispensable. Hence, the respondent prayed for confirmation

of the concurrent judgments passed by the Courts below.

6.This Court considered the rival submissions made by the learned

counsel appearing on either side and perused the materials available on

record.

7.From the concurrent findings recorded by both the Courts below,

on a careful appreciation of the evidence of the Forest officials as well as

the plaintiff’s witnesses, plaintiff clearly established that the Nadugani

Thadam (pathway) exists throughout a stretch of about 2.5 to 3

kilometres with a width of approximately 6 feet to reach plaintiff's

'A' schedule property. Both the Courts have categorically held that the

pathway described as 'B' schedule property has been in existence for

several decades and that there is no alternative access to the plaintiff’s

'A' schedule property. Any obstruction to the pathway would cause

serious prejudice to the plaintiff, as without the pathway, the plaintiff

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S.A.(MD)Nos.230 and 236 of 2021

would be unable to enjoy or utilise the suit property.

8. The right to property, though no longer a fundamental right, is a

constitutional right under Article 300-A, and the right of access is an

instance of the right to property. The right to use a pathway is

intrinsically connected with the effective enjoyment of property. The

enactments relied upon by the learned Additional Advocate General,

namely the Wildlife Protection Act, 1972 and the Forest

(Conservation) Act, 1980, regulate the use and conservation of forest

land. In the present case, there is no question of conservation of forest

land, but only restoration and renovation of the existing pathway.

There is no alteration or extinguishment of any right. The narrowing of

the pathway from 6 feet to 2–3 feet has occurred only due to the floods in

the year 1991, and the plaintiff now seeks merely the restoration of the

original width.

9.The principal apprehension expressed by the learned Additional

Advocate General is that the area falls within a Tiger Reserve /

protected forest, and that permitting vehicular movement would disturb

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S.A.(MD)Nos.230 and 236 of 2021

wildlife. This Court is unable to accept the said contention, particularly

when the appellants themselves admit that Forest Department vehicles

are regularly used for supervision and administration within the same

area. In such circumstances, the contention that the use of the plaintiff’s

vehicle alone would disturb wildlife is untenable and misconceived.

10.It is also on record that during the course of the first appeal, a

specific plea was raised that several other estate owners, factories, and

plantations situated within the forest area have been permitted to lay and

use roads. In such circumstances, singling out the plaintiff and denying

him permission to renovate the pathway that too at his own cost would be

arbitrary and legally unsustainable.

11.A pathway is jugular vein of land. When the said vein is

severed, practically he would lose his bread and butter. The fruitful

enjoyment of the plaintiff’s property has been impeded for reasons

extraneous to law and hence, the first appellate Court correctly granted

decree for mandatory injunction to restoration of the pathway which had

been damaged due to un proceeded rainfall happened in the year 1991 at

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S.A.(MD)Nos.230 and 236 of 2021

his own costs and the concurrent findings of the Trial Court and the First

Appellate Court relating to the existence of pathway as described in the

“B” scheduled suit property and the decree of the learned first appellate

judge to restore the pathway at the plaintiff's costs do not suffer from any

perversity or legal infirmity warranting interference under Section 100 of

the Code of Civil Procedure.

12.Accordingly, this Court finds no merit in these Second Appeals.

All the substantial questions of law are answered against the appellants.

The Second Appeals are dismissed. There shall be no order as to costs.

Consequently connected miscellaneous petitions are closed.

06.01.2026

NCC : Yes/No

Index : Yes/No

Internet: Yes/No

sbn

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S.A.(MD)Nos.230 and 236 of 2021

K.K.RAMAKRISHNAN, J.

sbn

S.A.(MD)Nos.230 and 236 of 2021

and

C.M.P.(MD).Nos.3312 and 3316 of 2021

06.01.2026

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