THIRUVENGADA GOUNDER Vs. ELUMALAI GOUNDAR

JUDGEMENT

(1.) THE second appeal has been filed by Thiruvengada Goundar (since died) being the third defendant in O. S. No. 390 of 1989 on the file of the District Munsif, Maduranthagam against the judgment and decree of the Principal Sub Court, Chingleput in A. S. No. 103 of 1990 in and by which the said Sub Court has dismissed the appeal and confirmed the judgment and decree of the Trial Court.

(2.) THE said suit was filed by one Elumalai Goundar against his own three brothers for the reliefs of declaration and permanent injunction with the following allegations. The suit property viz. , the portion marked in the plaint plan as 'abcdef' in S. No. 39 and 40 at Pasuvankaranai village, Madurantagam Taluk along with other properties originally owned by the father of the plaintiff and defendants viz. , Abimanyu Goundar. The said Abimanyu Gounder, through execution of a Will in favour of his four sons described as A, B, C, D schedules. A, B and C schedules were respectively given to defendants 1 to 3 and D schedule was given to the plaintiff. After the death of Abimanyu Gounder, the plaintiff and defendants are enjoying the respective properties allotted to them as per the said schedules. C schedule properties allotted to the third defendant Thiruvengada Goundar are lying adjacent to the Endathur-Elapakkam road. There is also a cart-track leading from the said road to the lands shown as ABCDEF in the plaint plan and the cart-track was being enjoyed by Abimanyu Gounder also during his lifetime. The said cart-track was being used for the purpose of getting the agricultural produce from the lands and for getting Tractor and other vehicles for the purpose of transporting manure, etc. The said cart-track is the only access for reaching S. Nos. 23/1, 23/3, 23/4 and 24 and there is no other access. Further, the existence of the said cart-track and access of the same has been admitted by the defendants in the written statement filed by them in O. S. No. 263 of 1987 filed by one Kali Gounder. Now, due to enmity between the plaintiff and defendants, they are trying to interfere and obstruct the use of the cart-track by the plaintiff without any right or basis. Therefore, the plaintiff happened to file the suit for declaration in respect of the cart-track marked as 'abcdef' and consequential permanent injunction.

(3.) THE said suit has been resisted by the defendants by adopting the written statement filed by the third defendant with the following allegations. It is not correct to state that 'abcdef' marked cart-track is being used for more than 22 years and it is also not correct to state that the said cart-track is being enjoyed by the plaintiff by way of easement of necessity. There is no such cart-track as claimed in the plaint and that if really there was a cart-track, the said Abimanyu Gounder himself would have mentioned about the existence of such cart-track in the Will executed by him in favour of his sons. The cart-track shown by the commissioner in his plan with the width of 8 feet is also not correct. It is not correct to state that the defendants in O. S. No. 263 of 1987 admitted about the existence of the cart-track and the said Kali Gounder being the plaintiff in that suit demanded only pathway upon the ridge and nothing more. The lands bearing S. Nos. 30, 40/1a, 40/1b and 40/8 are belonging to the defendants. Therefore, nobody was enjoying the cart-track as such claimed in the plaint at any time and thereby the suit is liable to be dismissed.