PALANIAPPA GOUNDER Vs. PONGIANNA GOUNDER

JUDGEMENT

(1.) The chequered journey of the present litigation between the parties in these two second appeals is capsulated as under:- O.S.No.1025/1990 was filed by one Sengottaian and 5 others against Palaniappa Gounder, his wife and two sons for declaration and perpectual injunction in respect of a cart track. As per the plaint in this suit, the said cart track is in R.S.F.No.50/2 of Thindal Village and they have right to take carts, cattle and men from Erode-Perunduarai Main Road through this cart track to their land in R.S.F.No.49. The plaintiffs' land is on the R.S.F.No.49. The said land is on the immediate East of the land in possession and enjoyment of the defendants in R.S.F.No.50. Immediate West of R.S.F.50, the Erode- Perundurai Road runs North South. From the said road, the access to the plaintiffs land in S.No.49, they have to come through the cart track in S.No.50/2. The said right has been enjoyed by the plaintiffs and their predecessors-in-title for the past 100 years. Suddenly, the defendants trying to block the cart track pathway at the point, where it enters R.S.F.No.49. The suit to declare their right of easement by prescription.

(2.) O.S.No.630/1991 was filed by Palaniappa Gounder against one Pongianna Gounder and 8 others. The plaintiffs in O.S.1025/1990 are made all defendants in this suit. This suit is for permanent injunction for restraining the defendants from interfering the peaceful possession and enjoyment of the 'ABCD' marked portion of the property in R.S.F.No. 50/2 of Tindal Village. As per the plaint in this suit, the plaintiff is the absolute owner of the suit property in R.S.F.No. 50/2. The suit property and the adjoining property on the western side in S.F.No.50/4 was purchased by the plaintiff's father in the year 1941. On the East of the suit property is the compound wall of the third party. The Western side of the plaintiff's property touch the Erode-Perundurai Road. On the further south, the plaintiff's house is under construction. To sell his land in S.No.50/4 as house sites, he has left the suit property as cart track to reach his southern side portion. The said cart track portion is marked as 'ABCD' in the rough plan filed along with the plaint. The defendants got no right in the said cart track. For their land in R.S.F.No.49, they have easy access from the southern side of their land through Sakthi Nagar. To avoid circuitous route and to have access to Perundurai Road from North, which will enhance the price of the plots promoted, the defendants on 30/04/1991 attempt to make a cart track to link their land with 'CD' marked portion. The said attempt was thwarted.

(3.) After trial, a common judgment in these two suits was delivered on 24/03/1997. The suit in O.S.No.1025/1990 was allowed and the suit in O.S.No.630/1991 was dismissed. The said common judgment was challenged before the Sub-Court, Erode in A.S. Nos.182/1997 and 183 of 1997 respectively. The appellate Court remanded the suits back for re-trial. Accordingly, the trial Court conducted re-trial and received additional documents, examined additional witnesses and rendered its common judgment on 25/11/1998 wherein the declaration suit in O.S.No.1025/1990 was dismissed. The permanent injunction suit in O.S.No.630/1991 was allowed.