G. KASI GOUNDER Vs. SARAVANAN

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff against the judgment and decree dated 19.06.2007 passed by the first appellate court in A.S No. 6 of 2005.

(2.) THE case of the plaintiff is that the government poramboke street running adjacent to his property from East to West is a public street and that the defendants had no right to prevent the plaintiff from using the same. The specific case of the plaintiff is that he has been using the street to carry fertilizers through lorry or tractor or bullock carts. Aggrieved by the interference of the defendants, the plaintiff had filed the suit in O.S. No.604 of 1997 seeking permanent injunction restraining the defendants, their men, agents, servants or their representatives from interfering with the plaintiff's usage and enjoyment of the schedule mentioned property as street either by erecting obstruction or in any other manner. The defendants resisted the suit claiming that the plaintiff has manipulated the records and that the alleged street is not a government poramboke. After hearing the parties, considering the report of the advocate commissioner and oral as well as documentary evidence, the suit was decreed.

(3.) AGGRIEVED , the first and second defendants filed the appeal in A.S No. 6 of 2005 before the Subordinate Judge, Gudiyatham. After hearing the parties, the first appellate court dismissed the appeal on 26.06.2006. The first and second defendants, filed a review application under Order 47 Rule 1 of CPC contending that though the appellate court had recorded the width of the street to be only 8 feet has dismissed the appeal and therefore, warranted reconsideration of the entire case as it is an error apparent on the fact of the record. After hearing the parties, the lower appellate court re -appreciated the entire case, allowed the application for review and modified the judgment passed by it earlier and partly allowed the appeal holding that the plaintiff is not entitled to take tractors or bullock carts to his premises. Aggrieved, the present second appeal has been filed.