KARUTHIRUMAN Vs. GOPALAKRISHNAN

JUDGEMENT

(1.) THE unsuccessful plaintiff viz. , Karuthiruma Goundar and his wife another plaintiff viz. , Nagarathinam have respectively filed S. A. Nos. 781 and 782 of 1994 against the concurrent judgments of the Principal District Munsif, Gobichettipalayam and the Sub Judge, Gobichettipalayam respectively in O. S. Nos. 92 of 1990, 93 of 1990, A. S. Nos. 1 of 1991 and 2 of 1991 in and by which both the courts have dismissed both the suits filed by Karuthiruma Goundar and his wife Nagarathinam separately.

(2.) THE suit in O. S. No. 92 of 1990 was filed by Karuthiruma Goundar for the reliefs of declaration of title and permanent injunction and the said Nagarathinam filed O. S. No. 93 of 1990 for the reliefs of declaration of easementary right and permanent injunction in respect of a pathway marked as ABCD in red colour in the plaint plan with measurements of 13 feet in east west on the north, 16 feet east west on the south, 50 feet north south on east and west bounded by Sathy-Athani main road on the north, by the house of Govindarajan and Jabbar on the west, by the house of Kalki Sundaram and Nagarathinam on the east and by pathway on the south with following common allegations in both the suits. The plaintiff Karuthiruma Goundar and his brother Thangavelu and their mother Venkatammal partitioned the properties on 17. 8. 1962. In that partition, the suit property as described in the plaint schedule was left out for the purpose of common enjoyment and it was enjoyed by the parties in common. The said Thangavelu settled his share of property in favour of his wife and likewise, the said Karuthiruma Goundar also settled a portion of his share of property in favour of his wife on 30. 1. 1990. The said Thangavelu and his wife sold a portion of the property in favour of one Venkateswaran son of the defendant Gopalakrishnan after leaving the suit pathway. On the same day, the said Thangavelu sold the common pathway viz. , the suit property in common right in favour of the defendant Gopalakrishnan. So, the said Thangavelu had no right to sell the entire common property without referring to the share of the plaintiff in favour of the defendants. Since the defendant attempted to block the suit property on 1. 2. 1990, the said Karuthiruma Goundar happened to file the above said suit. Likewise, the above said Nagaraathinam wife of Karuthiruma Goundar filed the other suit by saying that the suit property as common pathway is being enjoyed by them not only on the right of share but also by way of easement of necessity for getting access of bullock carts, cattle etc.

(3.) BOTH the suits were resisted by the defendant Gopalakrishnan by filing written statement with the following common allegations. The suits, as such, are not maintainable. It is false to state that the suit property is a common property of Karuthiruma Goundar and his brother Thangavelu. In fact, as per the partition deed dated 17. 8. 1962, the suit property was allotted to the share of Thangavelu and so, neither Karuthiruma Goundar nor his mother Venkatammal has no manner of right upon the suit property. There is no question of half share for Karuthiruma Goundar nor there is easementary right for Karuthiruma Goundar and his wife Nagarathinam. After partition, there is no question of enjoyment of the suit property in common or otherwise by the plaintiffs Karuthiruma Goundar and Nagaraathinam. On the other hand, the said Karuthiruma Goundar and his wife Nagaraathinam were having access straightway to the main road on the north of their property for getting access of bullock carts, etc. , and that particularly, they are also having one itteri on the east of their property. It is true that the defendant Gopalakrishnan has purchased the suit property on 3. 1. 1990 from the said Thangavelu for valuable consideration and it cannot be questioned by the said Karuthiruma Goundar and his wife Nagarathinam as if there is common right or easementary right that too when they are having separate way of itteri on the east. Therefore, both the suits are liable to be dismissed.