R SUBBAIAH Vs. MAHESHWARI

JUDGEMENT

(1.) The plaintiff who laid a suit for bare injunction that his right of access over certain pathway that cuts across Survey Nos.496/1B and Survey No.496/5B is not obstructed by the defendants, and having lost the suit before both the Courts below, has preferred this appeal. The parties would be referred to by their rank before the trial Court.

(2.) A certain Mallappa Gouder owned some properties, of which, a property measuring 4.32 acres(out of 6.76 acres) in Survey No.489/4B is one. Mallappa Gouder had four sons. They are Manjaya Gouder, Duraisamy Gouder, Subbian Gouder and Thangaraj Gouder. Be that as it may, on 05.12.1964 under Ex.A1, partition deed, Mallappa Gouder and his sons had divided the properties, in which, Manjaya Gourder was allotted the aforesaid, 4.32 acres in Survey No.489/4B with a Well in Survey No.496/5B with a right of way and another small property in Survey No.489/6. He has also filed a rough plan indicating the pathway, which he has to access for the purpose of accessing the Well. The plaintiff would further allege that this is the only pathway available to him to access the Well. This was objected to by the defendants.

(3.) Before the trial Court, both sides adduced oral and documentary evidence and a Commissioner too is stated to have been appointed. The trial Court has taken a view that in Exts.A2 and A3, the sale deeds under which the plaintiff has purchased the property, there is only a reference to a right of way and there is no specific reference to Survey Nos.489/4B or 496/5B or 496/1B. Secondly, it refers to a Commissioner's report and it never appears to have been marked. This was also accepted by the First Appellate Court.