VENKIDUSAMY Vs. KARUPUSAMY

JUDGEMENT

(1.) The plaintiff proved to be successful before the trial court but lost his case in the appeal before the lower appellate court and hence he is before this court with the present second appeal. The appellant/plaintiff filed the suit O.S.No.33/1999 on the file of Court of District Munsif, Sathyamangalam for: 1) a declaration of his easementary right by prescription and by grant to take men, cattle and carts through the suit cart-track; 2) a permanent injunction restraining the respondent/defendant from causing any obstruction to the enjoyment of the suit easementary right; and 3) cost.

(2.) The appellant/plaintiff Venkidusamy and the respondent/defendant Karuppusamy are brothers. Their father Rangan purchased the property measuring an extent of 8.53 acres comprised in S.F.No.392 of Chikkarasampalayam village, Sathyamangalam Taluk under a registered sale deed in the year 1959. After the said purchase, he sold the southern most part of the survey No.392 measuring an extent of 1.19 acres to the respondent/defendant under a sale deed dated 08.03.1984, a certified copy of which has been produced as Ex.A5. The said portion sold in favour of the respondent/defendant came to be sub-divided as 392/2 and the remaining portion retained by Rangan was assigned sub division No.392/1. Subsequently, in the year 1988, Rangan settled the northern most part of S.No.391/1 measuring an extent of 2.00 acres in favour of the appellant herein/plaintiff under a registered Settlement Deed dated 22.08.1988, a certified copy of which has been produced as Ex.B1. After the death of the father Rangan, the middle portion was divided among the legal heirs of Rangan under a registered Partition Deed dated 01.08.1994, a certified copy of which has been produced as Ex.A4. As per the partition, the northern portion immediately lying on the south of the property settled on the appellant herein/plaintiff under Ex.B1 came to be allotted to the share of the appellant herein/plaintiff. Similarly, the southern portion adjoining the property sold by Rangan in favour of the respondent herein/defendant under Ex.A5-sale deed came to be allotted to the respondent herein/defendant. The middle portion was allotted jointly in favour of Pazhanal, the wife of Rangan and Lingammal, the daughter of Rangan. In the said partition deed, the properties thus allotted jointly to Pazhanal and Lingammal was shown as the 'A' schedule property, the property allotted to the appellant herein/plaintiff Venkidusamy was shown as the 'B' schedule property and the property allotted to the respondent herein/defendant Karuppusamy was shown as the 'C' schedule property.

(3.) Even prior to the division they had left a 16 feet passage forming the eastern part of S.No.391/1, which extended up to the southern boundary of the said survey number. Prior to the partition, the respondent herein/defendant purchased the property comprised in S.No.393/1, which situates on the south of S.No.392/2 purchased from his father under Ex.A5. The said property was purchased in two spells under two sale deeds dated 13.11.1981 and 01.06.1984, copies of which have been marked as Exs.A1 and A2. In all those sale deeds and the settlement deed, the mamool cart-track and the 16 feet cart-track provided on the eastern portion of S.No.391/1 were also referred to. The above said facts are the admitted facts and they are not disputed by the parties.