R PATTAYYAN Vs. K PADMANABHAN

JUDGEMENT

(1.) This Second Appeal is preferred by the plaintiff against the concurrent finding of the Courts below.

(2.) The plaintiff being the owner of the property in S.No.153/1 of Madhampatti village claiming Easementary Right over 13 feet cart track prescribed to him under the sale deed Ex.A2 laid suit for mandatory injunction and permanent injunction alleging that the defendant has encroached 3 feet east-west, 35 feet north-south of the cart track at the entrance of the cart tack. His case is being a dominant tenement, his right of easement of way cannot be encroached by the survient tenement.

(3.) The suit was defended on the ground that there is no 13 feet cart track in the field. It is only 11 feet width. The vendor to the plaintiff and the defendant were using the said cart track, which was about 11 feet width. The defendant purchased 1755 sq.ft. of land with specific boundary in the year 1996 and had put up a construction in the year 2000 within the boundaries mentioned. The suit filed for mandatory injunction after five years of the construction is barred by limitation.