S J DEVADAS Vs. SUBRAMANI

JUDGEMENT

(1.) The plaintiffs in the suit are the appellants.

(2.) The case in brief is as follows:- The plaintiffs filed a suit to declare the title to the B schedule property and consequently for delivery of possession or in the alternative, a declaration of their prescriptive right of way and free passage for the drainage water and for mandatory injunction directing the defendants to remove the obstruction from the B schedule property. The plaintiffs are the absolute owners of A schedule property having obtained the same under a Settlement Deed dated 07.07.1980. 'A' schedule property was measuring 25 feet north-south and 75 feet east-west. They have put up a house construction measuring 22 feet north-south and 16 feet east-west. There are also two huts situated in the backside. On the southern end, there exists a 3 feet pathway morefully described in the B schedule. The pathway has been in existence for the last 67 years. The plaintiffs' predecessors-in-title had been using the pathway as well as the drain and they have also prescribed the right. A drainage is also existing on the 3 feet, which connects the Municipal drainage situated in Lazer Street. The defendants have encroached the B schedule property, which is only part of A schedule property. The defendants have put up a thatched shed, thereby obstructing the plaintiffs from using the pathway for having ingress and egress. They have also blocked the drainage resulting in stagnation of drainage. The defendants have no right whatsoever in respect of B schedule property and hence, the suit. The defendants filed a written statement and denied the various averments in the plaint. They denied the allegation that B schedule property is part of A schedule property and the plaintiffs put up the house construction leaving 3 feet pathway on one side. B schedule property absolutely belongs to the defendants. The plaintiffs are not entitled to claim any right, much less alternative relief. The 1st defendant has perfected title to the property and the suit is liable to be dismissed. The trial court framed 5 issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 and A-2 were marked and on the side of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-3 were marked. The reports and plans filed by the Commissioner were marked as Exs.C-1 to C-4. The trial court decreed the suit and aggrieved against this, the defendants preferred A.S.No.164 of 1989 on the file of Additional District Court, Vellore and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. Aggrieved against this, the plaintiffs have come forward with the present second appeal.

(3.) At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: