T MUNIAPPA Vs. PERUMIAH

JUDGEMENT

(1.) This second appeal is preferred from the judgment and decree of the learned District Judge, Dharmapuri at Krishnagiri dated 4-4-1990 made in A.S. No. 84/88 confirming the judgment and decree of the trial Court viz. the District Munsif, Hosur made in O.S. No. 188 of 1979 dated 26-6-1985.

(2.) The respondents herein filed a suit in O.S. No. 188 of 1979 seeking for a declaration that they are entitled to use the mamool MN path way cum cart track as shown in the plaint plan, for a consequential permanent injunction along with the relief of mandatory injunction for removal of the varandah construction put up by the appellants and for a declaration that the vacant space shown in the plaint plan is a common space between the parties along with consequential injunction. It is alleged that the first respondent is the owner of the house and vacant site described as ABCD in the plan by way of purchase under a registered sale-deed dated 26-4-1949 while the second plaintiff is the owner of the house described as EFGH in the plaint plan; that on the north of the house of the first respondent, the first appellant is having his house shown as IJKL and on the further north Rajaveedhi running east west is situated; that the appellants 2 and 3 are the sons of the first appellant; that to the east of the houses of the parties, there is a way shown as MN in the plaint plan, which has been used as a foot path as well as a cart track; that the said cart track having 10 feet width has been used for the past 50 years; that the same is the way leading to the houses of the parties from Rajaveedhi, that except the same, there is no other way for the respondents to take their carts from Rajaveedhi and also to take their cattle and also for them to walk; that the said way MN stopped at the house of the second plaintiff and it did not extend further; that the said way MN is an absolute necessity and the plaintiffs/respondents have been using the same for the past 30 years; that even the predecessors in title of the first appellant knew the same and they did not cause any obstruction or any hindrance to the usage of the said MN way; that in fact even in the document viz. the sale deed executed in favour of the first appellant dated 20-11-1978, the said way is shown as the eastern boundry; that in between the houses of the first respondent and the appellants there is a vacant site which is a common space IBCL for both; the first respondent and the appellants and even to this the appellants did not have any exclusive right or possession and they did not have any right to cause obstruction or put up any construction in the said space; that the appellants did not have any right beyond their eastern wall shown as KL; that due to the enmity on 22-5-79, they planted three stone pillars at a distance of 5 to 6 feet from KL wall; that the said construction was well within the said MN path cum cart track; that despite protest, the appellants are proceeding with the construction; that the said illegal construction put up by the appellants in the mamool way MN has caused absolute obstruction to the respondents in exercising their rights; that the said construction is shown as KLQR; that the said illegal construction has got to be removed by way of a mandatory injunction; that the appellants are also making their attempt to close the common space IBCL permanently and hence a declaration that it was the common space has to be granted along with the consequential permanent injunction and therefore they have filed the suit for the abovestated reliefs.

(3.) The appellants as defendants in the trial Court contested the suit stating that the respondents are not entitled for the reliefs, that the houses came into existence only before four years, that the first appellant purchased the house and vacant space from the previous owner by a sale-deed dated 20-11-1978, but it is false to allege that to the east of the house of the parties, there was a common path way or a cart track, that it was not a plan marked or a mamool one; that there was no cart track and it was never used as cart track, but it was only a path way to reach the house from the road and the north and to go by walk to the houses of the respondents on the south; that in the vacant space in front of the respondents, they tethered their cattle and to the knowledge of the appellants no carts were ever parked or taken through that way; that it is also further false to allege that the said path way was 10 feet wide, that it is not correct to state that the respondents have been using the said path way for the past 30 years or taking their carts or cattle, that between the houses of the respondents, there is a lane and the rain water from the two houses used to fall in the said lane in between and flow towards west and drain itself into a pohd; that it is not correct to state that te said KL will is the eastern wall of the appellants' house, that the appellants have put up the varandah only in their portion of the property belonging to them and in their possession and thus they have not encroached into any portion and hence the case of the respondents that the appellants have encroached into the path cum cart track was false and it cannot be called as illegal construction, that on the south of the property purchased by the appellants, they have occupied an extent of 20 links east west on the northern side and an extent of 40 links on the west in the north south direction and the said property which has been in the possession and enjoyment of the appellants, abutting their house on the west is also applied for assignment by the first appellant; that the respondents need not pass in the said passege which is situated to the east of the appellants house portion, since they were using the lane which is to the south of the cattle shed, that the respondents have not been using the space between the house of the Ele Gowdu and the appellants; that the respondents have no right to allow their rain water and guttur water to go into the space shown as IBLL in the rough sketch since all along the water has been flowing only between GFAD and thus the respondents are not entitled for the reliefs asked for, that the causes of action are imaginry and hence, the suit has got to be dismissed.