SEKAR Vs. PATTAIKARAR ALIAS PALANIAPPA GOUNDER

JUDGEMENT

(1.) THE present second appeal has been brought by the plaintiff/appellant herein, aggrieved by the judgment and decree passed by the learned Subordinate Judge, Namakkal, in A.S.No.139 of 2001, dated 18.10.2005, in and by which, the judgment and decree passed by the learned Principal District Munsif, Namakkal, in O.S.No.171 of 1999, dated 08.08.2001, was reversed.

(2.) BRIEF facts leading to the filing of the second appeal are given as under:- The plaintiff/appellant herein claimed to have purchased the suit property by registered sale deed, dated 11.03.1992. Even before purchasing the suit property in the year 1992, the plaintiff has also further claimed that the pathway, which is marked as XYZ, which is going to the plaintiff's property, has been in existence for the last 50 years, as it is being used by men, cattle and bullock cart. Since the sale deed, dated 11.03.1992, specifically mentioned the existence of pathway for more than 50 years, even prior to his purchase of the suit property, the defendant cannot obstruct from using the said pathway, with a width of 15'. Further, the defendant, by extending the thatched roof of their house, beyond 2.25', in blocking the road, have further created blockage to the plaintiff and other people using the existing pathway to reach their homes. Hence, the said extent of 2.25' blockage made by the defendants should also be removed.

(3.) LEARNED counsel appearing for the appellant submitted that when the plaintiff has placed his case on the basis of Exs.A1 and A2, sale deeds, which specifically speak about the existence of pathway, the learned first appellate Court ignoring the material evidence, has erroneously reversed the findings holding that the plaintiff has not pleaded in his plaint the existence of pathway. Further, the learned first appellate Court has committed one another error in holding that the sale deeds, Exs.A1 and A2 have also not mentioned the existence of pathway, when the sale deeds, Exs.A1 and A2, clearly speak about the existence of pathway. Further, when PW2 also clearly mentioned in his deposition that the plaintiff has purchased the suit property and it was also specifically mentioned in the sale deed executed jointly by him, his mother and his children, that the plaintiff is entitled to have the benefit of existence of pathway, having a width of 15', which is running below his house property, because that pathway is running from south-north leading to the plaintiff's suit property and without which the plaintiff cannot reach his house, the learned first appellate Court completely ignoring the material evidence, both oral and documentary, produced on record, acted totally against the evidence. Therefore, such findings required to be interfered with.