V PONNUSAMY PADAYACHI Vs. RATHINA PADAYACHI

JUDGEMENT

(1.) The first respondent filed a suit for partition and for declaration of easementary right of the suit mentioned pathway on the following allegation.

(2.) The plaintiff and the first defendant are the sons of the deceased Chinnasamy Padayachi and as between these 3 coparceners, a partition had taken place by virtue of a registered partition deed dated 4.2.76 when Chinnasamy was alive; that two items of properties mentioned in the schedule were allotted to the share of Chinnasamy and 'A' schedule to be partitioned by the 2 sons after the time of Chinnasamy, while 'B' and 'C' schedules of properties were allotted to the share of 2 sons as per the deed; that after the death of Chinnasamy, the suit properties are being enjoyed by the plaintiff and first defendant as co-owners without any partition and they are in joint possession; that the 2nd defendant is the brother's son of the said Chinnasamy Padayachi i.e., paternal uncle's son of the plaintiff and the first defendant; that between the 2nd defendant's father by name Vaiyapuri Padayachi and Chinnasamy Padayachi, there was a oral partition some 50 years back; that in the suit locality, 2nd defendant has also owned properties adjacent to the suit properties and other properties of plaintiff and first defendant; that the suit locality is situate in Ryotwari land comprised in S.F.119/4 Ac.2.03 and the partition is in accordance with the indications submitted in the plaint plan with house, manure pit, hay-rick, well and cultivable lands; that to reach the respective portions of the plaintiff and 1st defendants on one part and 2nd defendant on the other part, there has been a pathway in existence for the last 50 years; that the said pathway is the suit pathway marked as A B B 1 C D E F G.; that the said pathway passes through the portion belonging to both parties and they never felt to have separate demarcation for the pathway as it passes through vacant sites belonging to both parties; that when the suit property was enjoyed by the plaintiff and 1st defendant, the 2nd defendant has brought up a bogus exchange deed from first defendant on 21.2.83 falsely alleging that the southern half portion in each of the suit property did belong to the first defendant exclusive when there has never been any partition between the plaintiff and first defendant; that after getting this fradulent sale, the second defendant is attempting to prevent the plaintiff from using the suit pathway denying the right of the plaintiff; that the 2nd defendant claims title over the southern half share in each of the suit property and also denies the easementary right of pathway over the suit pathway which stands vested with the plaintiff; that since the suit pathway has been enjoyed by the plaintiff and his predecessors in title for a period of 50 years and more, the plaintiff has acquired the right of pathway by adverse possession also over the suit pathway; that the Court has set out a pathway in accordance with the provision of the Easement Act for the plaintiff over the suit locality; that in view of the alleged bogus Exchange Deed, it has become incumbent on the plaintiff to sue for partition of the suit properties and for allotment of share with possession to him and hence, the suit was filed for easementary right of the plaintiff over the suit pathway and also for partition of the suit 1st and 2nd items into two equal half and for allotment of one share providing pathway.

(3.) The suit was resisted by the 2nd defendant. The 2nd defendant had stated that he admits the relationship set out in the plaint among the parties and also the partition between Chinnsamy and Vaiyapuri; that it is true that in the partition deed, dated 4.2.76, the suit items and other items were allotted to the share of Chinnasamy with a life estate to be partitioned by the plaintiff and the first defendant after the life time of Chinnasamy; that after the death of Chinnasamy, the suit items 1 and 2 have been partitioned into two shares; that there is no pathway in existence as shown in the plaint plan as A B B 1 C D E F G for taking carts to the lands of the respective parties for over 50 years as alleged in the plaint; that there is only a feet pathway as shown in the Commissioner's plan to reach the lands of the respective parties to the suit; that it is being used during non-cultivation season for men and taking cattle for ploughing the lands of parties and during cultivation season and it is being used only by the parties to reach their respective lands; that no cart has ever been taken at any point of time through the pathway shown in the plaint plan; that as there is no pathway at all in existence for carts to go at any point of time, the claim of the plaintiff that he and his predecessors in title have acquired the right of pathway by adverse possession is false; that the plaintiff has been reaching his lands on the southern side through the opening shown in southern land of the plaintiff ; that the claim for partition and easementary right of pathway is unsustainable and hence, the suit has got to be dismissed.