THIRU A.R.SAMINATHAN Vs. BALAN @ BALASUBRAMANIAN

JUDGEMENT

(1.) The defendant in the suit is the appellant. The suit is for declaration that the plaintiffs were entitled to easementary rights to use the suit property as a pathway for ingress and egress and also to take horses and to take water from the water sources available with the defendant's property. The plaintiffs also sought for injunction restraining the defendant from interfering with the right of the plaintiffs to use the suit property as a pathway and to take water from the water source available with the defendant's property. The suit was decreed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the defendant has come by way of this Second Appeal.

(2.) According to the plaintiffs, the suit property originally belonged to first plaintiff's grandfather Kondaiyan Chettiyar. In the year 1953, there was a partition between Kondaiyan Chettiyar and his sons viz., Perumal, Govindan, Thanthoni Perumal and Azhagarsamy. The suit property was allotted to Govindan's share as 'B' schedule in the partition deed. The plaintiffs are claiming right under the said Govindan. It was claimed by the plaintiffs that the pathway in the suit property is the only access available to the plaintiffs to reach their lands for the purpose of agricultural operation and they have been using the same for so many years by taking cattle like Sheep and Horses for the purpose of agricultural operation. It was also claimed by the plaintiffs that the plaintiffs have been taking water from the water source available in the land of Jeyabalan and Ravi from time immemorial. The defendant purchased the property allotted to the share of Thanthoni Perumal and he also purchased the properties of Jeyabalan and Ravi, in which the water source is situated. After purchase, the defendant attempted to interfere with the plaintiffs' right of pathway and also the right to take water and hence, the plaintiffs were constrained to file a suit for above said reliefs.

(3.) The defendant filed a written statement and resisted the suit by claiming that the plaintiffs had right to use the suit property only as a pathway and they had no right to take cattle through the suit pathway. He also claimed that the plaintiffs have no right to fetch water as per the plaint averments.