CHENNIAPPAN Vs. URUKKAYI & ORS.

JUDGEMENT

(1.) This appeal by special leave petition arises out of impugned judgment and order dated 24th June, 2005 passed by the High Court of Judicature at Madras in Second Appeal No. 140 of 1994 whereby the Division Bench of the High Court set aside the judgment and decree passed by the First Appellate Court and restored the judgment passed by the trial Court.

(2.) The brief facts of the case are that the appellant's father Palaniswami Gounder and his brother Kasianna Gounder were commonly enjoying an extent of 1.50 acres of land till 5-6-1951 when they got a registered partition deed dividing the schedule plot into two parts after drawing roads on the North-South and East-West sides with understanding to use roads commonly. "A" part of the land was allotted to Kasianna Gounder consisting of 63 cents in three places i.e. two pieces of 18 cents each on the North side and one piece of 27 cents on the South side and the "B" part of the land was allotted to the father of appellant. It is the case of appellant that the deceased Kasianna Gounder during his life time had sold away the two Northern side pieces of 18 cents each and a part of Southern side piece of 27 cents and the remaining part in Southern side piece has been sold by the respondents by themselves that the entire "A" part has become alienated, and thereafter the appellant and the alienates have been using the roads commonly.

(3.) A Suit for grant of permanent injunction was initiated by the appellant and his father (Stakeholders of "B" part) against the respondents-defendants as they claimed right on the common pathway and tried to construct a shed over the pathway. Learned trial Court dismissed the Suit on the ground of non joining of necessary parties by the plaintiffs. However, the first appellate Court set aside the view taken by the trial Court and decreed the matter in favour of appellant and granted injunction restraining the defendants-respondents from taking up any construction work on the suit property. Aggrieved thereby, the respondents-defendants filed second appeal before the High Court which has been allowed and the judgment of learned trial Court has been restored. Dissatisfied with the reversal of judgment by the High Court, the original plaintiff is in appeal before us.