PALANI NADAR Vs. SELVIN

JUDGEMENT

(1.) The plaintiffs are the appellants. A suit has been filed by the plaintiffs for declaration, mandatory injunction and permanent injunction. It is the case of the plaintiffs that the suit property being a pathway exclusively belongs to them. According to the plaintiffs /appellants, the respondents/defendants have encroached upon a portion of the suit property belonging to the appellants. Therefore, the suit has been laid seeking the reliefs of declaration, mandatory injunction and permanent injunction.

(2.) The trial Court after considering Ex.A.6 filed by the appellants as well as the report of the Advocate Commissioner was pleased to decree the suit in so far as the declaration and mandatory injunction are concerned. However, the relief of permanent injunction was rejected even though the finding of the trial Court is that it is a common pathway. Being aggrieved against the judgment and decree of the trial Court, the defendants preferred an appeal in A.S.No.94 of 1993. The lower appellate Court also concurred with the finding of the trial Court in holding that the suit property is a common pathway belonging to both the appellants and respondents. However, the lower appellate court allowed the appeal in toto on the ground that in view of the specific stand taken by the appellants that the suit property is their exclusive property, the relief sought for cannot be granted. Challenging the decree and the judgment of dismissal, the appellants have come forward with the present Second Appeal.

(3.) At the time of admitting the Second Appeal, the following substantial questions of law have been framed: