SUBBAIAH Vs. AMARAVATHY

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 2-9-1988 rendered in A.S. No. 58.of 1985 by the Court of Subordinate Judge, Tenkasi, thereby decreeing the suit filed by the respondents herein, setting aside the judgment and decree dated 23-4-1984 rendered in O.S. No. 167 of 1983 by the Court of District Munsif, Shencottah.

(2.) Tracing the history of the above Second Appeal coming to be preferred, it comes to be known that the respondents herein have filed the suit for declaration of their title to the suit properties and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property and for costs, on averments such as that the first schedule property was purchased by the first plaintiff from one Azhagiammal under the document dated 23-6-1944, the second schedule property is forming part of the first schedule property and the same was purchased by the first plaintiff under a document dated 26-9-1962 and he has put up a mud wall to the height of 6 feet on the eastern portion of the second schedule property; that he has planted a tree on the south eastern corner of the suit property; that the defendants have no right or title to the suit properties and they are not enjoying the same at any point of time; that they are attempting to take a pathway in the suit properties and they claimed it as of their right on 9-3-1981 and hence the suit.

(3.) In the written statement filed by the defendants, they would submit that it is false to state that the second schedule of property belonged to one Azhagiaammal; that it is not stated in the plaint as to how she got the property, that Azhakiayammal is none other than the grand mother of the first plaintiff; that the second schedule property is a common pathway which the defendants are entitled for a width of 1 and 1/2 CC; that the ancestors of the defendants were also enjoying the same with the knowledge of the plaintiff that it is false to state that on the south of the defendants house, there is a street facing east to west, there is no such street; that there is no pathway to the defendants except the pathway in the second schedule of property; that there is no cause of action to the suit; that there is mention about the pathway in the sale deed dated 18-12-1926 in favour of Seeni Nadar. On such averments the defendants would pray to dismiss the suit with costs.