MOHANASAMY Vs. PALANISAMY GOUNDER AND ORS.

JUDGEMENT

(1.) THE defendant aggrieved by the decree granted in a suit for declaration of plaintiffs' right to use the 'B' schedule cart track and LBP channel therein to irrigate the 'A' schedule property and for mandatory injunction, restraining the defendant to restore the cart track and for permanent injunction, restraining the defendant from interfering with the use of 'B' schedule cart track and channel by the plaintiffs.

(2.) THE suit properties are agricultural lands and the cart track, that was situate at Samigoundanpalayam Village. The father of the first plaintiff and the father of the first defendant are sons of one Palanivelappa Gounder on 04.11.1961. The father of the first plaintiff executed a sale deed with respect to 1/4th share in Survey No. 15/1 in favour of the defendant's family with a right to re -purchase the same. The said property covered under Ex.A.1 is the 'A' schedule property. Subsequently, the said properties were reconveyed by the mother and brother of the defendant by virtue of a gift settlement deed on 24.03.1969 under Ex.A2. Thereafter, there was a partition between the defendant and his brother on 09.12.1977 as per Ex.A3. The brother of the defendant sold his share of the properties to one Veera Boyan under Ex.A.4.

(3.) RESISTING the suit, the defendant had averred in the written statement that there is no North -South cart track with the width of 12 feet on the Eastern side of the plaintiffs'. Under the settlement deed dated 24.03.1969, the plaintiff and his father were given a specific extent of 63 cents and to reach the said lands. A North -South pathway was created on the Western boundary fence only to be reached by foot. The said settlement deed also refers only a foot pathway and does not refer to a cart track as claimed in the plaint. Even in the partition deed dated 09.12.1977, the defendant and his brother had left 12 feet width pathway on the Western side in Survey No. 15/1 and it is only exclusively for the defendant and his brother and not for the benefit of the plaintiff. The plaintiff can have only a foot pathway and not a cart track as claimed by him. The contention of the plaintiff that the defendant had obliterated the existing cart track is denied by the defendant. In the absence of any cart track, the suit claim is impermissible and the same was sought to be dismissed by the defendant.