P GUNABALAN Vs. A SUBBIYAN

JUDGEMENT

(1.) The plaintiffs, in a suit for declaratory relief in respect of the passage and consequential mandatory injunction, have challenged the judgment of the learned Subordinate Judge, Coimbatore made in AS No.214 of 1992 wherein the judgment of the trial court granting decree in their favour was reversed.

(2.) The following facts are noticed in the plaint averments: The plaintiffs are the sons of one Palaniappa Gounder, who was the absolute owner of the suit property by virtue of the registered sale deed dated 21.4.1969. He died in the year 1980 leaving the plaintiffs as heirs and they have been in occupation and enjoyment of the suit property. The plaintiffs entered into a division of the suit properties under a registered instrument dated 9.6.1990. The suit property was allotted to the share of the plaintiffs 2 and 3. Thereafter, the plaintiffs 2 and 3 have sold the same to the fourth plaintiff under a registered sale deed dated 3.6.1991. The second defendant was the owner of the property situated on the south of the suit property and he sold the same to the first defendant. Thus, the first defendant became entitled to the property situated on the south under sale deed dated 16.2.84. The plaintiffs were entitled to the space measuring 1-1/2 feet North South and 48-3/4 feet East West on the south of the plaintiffs' southern wall. They have been using the said space to approach their southern wall for maintenance and repairs. The plaintiffs and the predecessor-in-title were enjoying the same for more than 50 years. The sale deed executed by the second defendant in favour of the first defendant on 16.2.1984 recognise the right of the plaintiffs and the sale was subject to the right of the plaintiffs on the said passage. After the purchase, the first defendant tried to interfere with the right of the plaintiffs. When there was an interference, an panchayat was convened on 26.1.1985. The decision arrived thereat was accepted by both the parties. It was agreed that the defendants should remove the offending construction within a period of 11 months, but they have not done so. Under the stated circumstances, there arose a necessity for declaratory relief along with consequential mandatory injunction for removal of the offending construction.

(3.) The suit was resisted by the defendants inter-alia stating that the suit was bad for non joinder also; that the plaintiffs were never in occupation of the alleged suit passage; that there was no vacant space between the plaintiffs' and the defendants' property; that three rooms were constructed; that they were assigned Door Nos.83, 84 and 85; that they were abutting the southern wall of the plaintiffs for the past 50 years; that neither there was any space nor was enjoyed by the plaintiffs at any point of time; that the first defendant was the only owner of the suit property; that there was no such passage as alleged in the plaint; that even assuming that the plaintiffs had got any right of easement, had extinguished long back; that the plaintiffs have not stated when the alleged encroachment was made; that the vendor of the first defendant cannot confer any easement, which was not in existence; that the said panchayat Muchalika was not valid; that it was tainted with coercion and compulsion, and thus, it was not a valid document.