K S BHOOPATHY Vs. KOKILA

JUDGEMENT

(1.) Leave granted.

(2.) This appeal filed by the defendants is directed against the judgment/order of the Madras High Court in Second Appeal No. 807 of 1996 and C.M.P. Nos. 7569/96 and 1085/96 along with the application filed by the respondents 1 and 2 under Order XXIII Rule 1(3), Civil Procedure Code (C.P.C. for short) seeking permission of the Court to withdraw the suit with leave to file a fresh suit. The factual matrix of the case relevant for appreciation of the questions raised in the appeal may be stated thus:Respondents 1 and 2 herein filed O.S.No. 197/89 (subsequently renumbered as 614/89) in the Court of the District Munsif, Erode arraying the appellants and respondents 3 and 4 as defendants in the suit. In the said suit the plaintiffs sought relief, inter alia, of injunction against defendants 1 and 2 restraining them from establishing and running a flour mill on their property and for further injunction restraining them from disturbing the plaintiffs' exclusive user of the pathway lying between the properties of the plaintiffs on one side and defendants 1 and 2 on the other. Defendants 1 and 2 in the suit as owners sold portions of their land by separate sale deeds dated 10-8-1978 executed in favour of plaintiffs 1 and 2 which were shown in the map attached to the plaint in blue and green colours respectively. The pathway is similarly shown in red colour in the map. It was the case of the plaintiffs that establishment of the proposed flour mill by the defendants 1 and 2 will act as a nuisance and will seriously prejudice the plaintiffs' user of their property on which they have constructed a clinic. Regarding the pathway the case of the plaintiffs is that they have exclusive right of user of the same and the plaintiffs should not be permitted to interfere with their right in any manner.

(3.) The defendants 1 and 2 refuted the claims of the plaintiffs in respect of both the prayers and contended that the proposed flour mill will in no way act as a nuisance against user of the property by the plaintiffs and that the plaintiffs have no exclusive right of user of the pathway which is a common pathway meant to be used by both the parties.