MALARKODI Vs. K SUBRAMANIAN

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree, dated 28.11.2008, made in A.S.No.45 of 2008, on the file of the Subordinate Court, Kanchipuram, confirming the judgment and decree, dated 29.11.2007, made in O.S.No.249 of 2003, on the file of the District Munsif Court, Kanchipuram.

(2.) THE appellants in the present second appeal were the defendants in the suit, in O.S.No.249 of 2003. THE respondents herein had filed the suit, in O.S.No.249 of 2003, on the file of the District Munsif Court, Kanchipuram, praying for a judgment and decree for permanent injunction restraining the defendants in the said suit, their men and agents from, in any way, interfering with the plaintiffs right of usage of common Narasam, and for a mandatory interim injunction directing the defendants to remove the unauthorised construction of the wall and the sunshade over the common Narasam and the iron gate put up by the defendants in the common passage.

(3.) IT had also been stated that in all the schedules in the partition deed the lane has been shown for having the right of access from the street to the rear portion. The said land had been in existence for several years and the sharers of the property have been using the same for more than 30 years. There is no other way to reach the back portion of the first defendant. The first plaintiff after his purchase of a share of the property had removed the super structures, which were in the said property, intending to build a terraced house therein. The plaintiffs had already constructed two shops along `AJ' portion. The plaintiffs have been planning to extend their portion east to west annexing the land to their portion of the property, thereby preventing the first defendant from having the right of way to reach her portion. The existence of the lane is essential for the defendant to go to her portion of the property. IT had also been stated that the suit for bare injunction, without a prayer for declaration, is defective in nature. IT is also bad in law, as the correct plan had not been filed, along with the suit. When the right of the first defendant in the suit property had been acknowledged by the plaintifs in certain earlier documents, the present suit had been filed by them only as a counter blast to the suit filed by the first defendant, in O.S.No.234 of 2003.