RAMASAMY Vs. K C DORAISAMY

JUDGEMENT

(1.) 1. The defendants in O.S.No.584 of 1987 on the file of the District Munsif, Satyamangalam, are the appellants in the second appeal. The respondent herein filed the suit for declaring his easementary right of cart-track to take carts, cattle and men over ABC pathway as shown in the plaint plan to reach his land from the main road on the west and for restraining the defendants/appellants and their men by means of a permanent injunction from interfering with his peaceful enjoyment of such easement.

(2.) THE case as set out in the plaint was as follows: THE cart-track ABCDE marked in red colour in the plaint plan runs along the southern border of the appellants? land western and northern sides of his land and proceeds further eastwards. THE said cart-track has a width of 10 feet and has been in existence for more than 50 years prior to the filing of the suit. THE villagers of Kondi Bommanur lying east to the suit property had been using the cart-track to walk, take carts, cattle and men to and from the main road on the west. THE cart-track had been created long long ago and had been used as a public road. A canal was dug across the cart-track east to his land about 15 years prior to the suit and thereafter, the villagers in general could not take carts from the village to the main road, but are using it to walk and take cattle. But, the land owners west of the canal including himself had been continuing the user of the cart-track west of the canal to reach their land from the road on the west as before. This right to use the ABCDE cart-track has been acquired as a prescriptive right. He is also entitled to right of easement by lost grant also. Only appellants 1 to 3 are denying the rights and threatening to demolish the pathways portion BC and annexure the portion to their cultivable land. It is under these circumstances the suit had to be filed.

(3.) THOUGH the respondent was served, he had not engaged any counsel and Mr.N.Manokaran, was appointed as amicus curiae by the court. Mr.Manokaran submitted that there is no question of any res judicata in the instant case as the respondent was not a party in the earlier proceedings. He had only given evidence as P.W.2 and the decision in the earlier suit would not materially affect the case of the respondent in the present suit. He also relied on the following judgments: