MUTHUSAMY Vs. RAJENDRAN

JUDGEMENT

(1.) The Second Appeal is filed by the defendants in the suit for bare injunction having lost the respondent before the Courts below.

(2.) The brief facts of the case is that the plaintiff and the 1st defendant are brothers. The pathway mentioned as "ABCD" in the suit sketch is a common pathway of the plaintiff, the 1st defendant and their brother Subramanian. The 'well' marked as X, the second item of the suit schedule, is commonly enjoyed by the joint family members in turn. Based on 25.03.1985 partition entered between Karuppanna gounder his wife Muthaiammal and three sons Muthusamy (1st defendant), Subramaniam and Rajendran (plaintiff). Under the partition, the 'A' schedule property was allotted to the 1st defendant; the 'B' schedule property was allotted to Subramaniam and the 'C' schedule property was allotted to the plaintiff (Rajendran). For the enjoyment of their respective properties, the 'ABCD' common pathway to reach the north-south panchayat road on the west of their respective properties is used by the brothers. The common pathway from A to B runs into a straight line and turns to north in ' L' shape from B to C where the common well is located. Thereafter, from 'C' it turns to east the width of the common pathway mentions as '17' links in all the documents, but for convenience at the turning point 'B' and 'C' the width is little wide between 20 and 23 links. The said arrangement was made in the year 1984 by the parties and demarcated with stone boundaries. Later, due to misunderstanding between the brothers, the plaintiff was restricted from using the pathway to reach his land marked as Ex.X1 on the eastern extreme by the 1st defendant and his children, who are the 2 nd defendant and 3rd defendant. They have also preventing him from using the common well to draw water and irrigate his land. They have planted trees along 'ABCD' common pathway preventing free access. Hence, suit for injunction restraining the defendants from preventing the plaintiff from enjoying the common pathway and the right of drawing water from the common well and also mandatory injunction to remove the obstructions caused by the tress and other plantations.

(3.) The defendants contested the suit admitting that under the partition deed dated 25.03.1985, the brothers have divided the properties under respective schedules. The "ABCD" pathway is earmarked as common pathway. However, the width of the pathway at 'B' and 'C' point is only 17 links. It was not expanded to '23' links at 'C' point and '20' links where the common well is located as alleged in the plaint. The width of the common pathway at all points always been 17 links. At no point it was extended. The defendants never prevented the plaintiff from using the common pathway or drawing water from the common well in turn.