SEVATHAL Vs. BALAN

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 20-2-1998 rendered in A.S. No. 108 of 1996 by the Court of III Additional District Judge, Dharmapuri at Krishnagiri thereby reversing the Judgment and decree dated 30-8-1996 rendered in O. S. No. 227 of 1991 by the Court of District Munsif,Krishnagiri.

(2.) The plaintiff is the appellant and he has filed the suit against the respondent herein for declaration that he has got a right in the pathway indicated as 'AB' in the plaint rough plan and that he has got the right to pass through the said pathway to the well and to take his cart and cattle and for a permanent injunction restraining the defendant from in any manner interfering with the plaintiffs usage of the said pathway and for costs on averments such as that the suit property was originally belonged to one Atmarao and his brother Satyanarayana Rao; that there are two wells and to reach the well and to take the cattle, the channel measuring 4 ft. breadth in S. Nos. 597 and 598/4 of Kallakurichi Village has to be crossed; that the said brothers have sold away l/4th share in favour of the plaintiff in the well and from the date of purchase, the plaintiff is in possession and enjoyment of the said pathway; that the vendors have been making use of the pathway for over 50 years; that for the suit property, the patta and chitta stand only in the name of the plaintiff and that he is paying the Kist; that the defendant has purchased lands on all the three directions except on the North of the plaintiffs property and since the defendant has also got a share in the suit property, taking advantage of the same, he is obstructing the plaintiff from making use of the pathway and hence the suit for declaration and permanent injunction.

(3.) In the written statement filed by the respondent/defendant, he would submit that he does not deny the right of the plaintiff to1/4th share in the two wells and that the plaintiff is enjoying the property that she purchased, but she never made use of the channel as the pathway and the defendant would also deny the allegation that the vendors of the plaintiff were making use of the channel as the pathway; that the plaint rough plan is a false one; that to reach the well, the vendors of the plaintiff only made use of the "Kodivaikal" and the plaintiff has got only the right of pathway and therefore the plaintiff is not entitled to get the relief sought for; that there is no cause of action for the suit; that he cannot make out the suit and hence would pray to dismiss the suit with costs.