N PALANI Vs. P LAKSHAVATSALU CHETTIAR

JUDGEMENT

(1.) The plaintiff has preferred the second appeal aggrieved against the judgment and decree dated 25-8-99 made in A. S. No. 108 of 1998 on the file of Principal District Court, Tiruvannamalai, reversing the judgment and decree dated 9-7-1998 made in O. S. No. 981 of 1989 on the file of Additional District Munsif Court at Tiruvannamalai.

(2.) The case in brief is as follows :The plaintiff filed a suit for permanent injuncion to restrain the defendant from putting up east west wall and also to put up a gate in respect of a common lane in the suit property. The suit property is a common lane belonging to the family of the plaintiff as well as the defendant. The plaintiff and his brothers have acquired 1/3rd right under a registered document dated 23-3-1983 and they used to reach the well through this way. The right of the plaintiff has been confirmed in the documents dated 23-3-1982 and 26-4-1972. The defendant attempted to put up a wall with a gate in the common lane on 25-9-1989 and he threatens to put up a lock also. The defendant has no right to put up any gate in the common lane. 3. The defendant contended that the suit property is not a common lane as claimed by the plaintiff. The defendant has the right of passage of use this lane for the purpose of reaching the common well situated on the north western side. The houses belonging to the brothers are situated on the northern side and the property measuring 3 feet east west is left in between the property of Pazhani Chettiar and Theerthagiri Chettiar. Excepting the right of way to reach the common well, there is no right for the plaintiff. This right is clearly stated in the Partition Deed dated 11-8-1943 between the defendant and his brothers. There is a specific reference that the land belongs to the defendant. Since the suit property is an open space, the cattle as well as other persons are causing nuisance. In order to prevent the trespass of the cattle and also prevent other anti-social elements from spoiling the atmosphere, the defendant attempted to put up a gate; but he never prevented either the plaintiff or other persons who have got right to reach the common well.

(3.) The trial court framed 4 isseus and on the basis of oral and documentary evidence, the suit was decreed. Aggrieved against this, the defendant preferred A. S. No. 108 of 1998 before the District Court, Thiruvannamalai and the appeal was allowed and the judgment and decree of the trial Court were set aside and the suit was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal.