SELLAPPA GOUNDER Vs. PALANISAMI AND ORS.

JUDGEMENT

(1.) The plaintiff in the original suit is the appellant in the second appeal. The defendants are the respondents. For the sake of convenience, the parties are referred to in accordance with their ranks in the suit.

(2.) The plaintiff filed the suit for a declaration that the portion marked as A B C D in the plaint plan is the common passage belonging to the parties to the suit and for a permanent injunction against the defendants not to obliterate the ridge and widen the passage and not to take carts and other vehicles through the suit property. The said prayer was made on the basis of the plea that in a partition that took place on 17.11.1959, alternative plots were allotted to the parties and common passage was allotted on the north eastern portion of the plot allotted to the plaintiff on the south western corner so that the plaintiff can use the same to reach the other plot allotted to him on the north eastern corner and at the same time, a link would be provided to the plot allotted to the defendant in the north western corner and the other plot, namely the plot allotted on the south eastern corner to the defendant. According to the plaintiff, the disputed passage shown as "ABCD" in the plaint plan is 4 cuboid, equivalent to 6 feet wide, whereas the passage running on the south of the plaintiffs portion allotted on the south western corner is with the width of 6 cuboid equivalent to 9 feet. According to the plaintiff, "ABCD" passage having a width of 6 feet was meant for taking men and cattle alone and the defendants cannot be permitted to widen the passage to take carts and other vehicles through the disputed passage.

(3.) The defendants, without denying the plaint averments that the passage suit cart track running east-west on the south of the south-western plot allotted to the plaintiff was 6 cuboid equivalent to 9 feet and that the suit passage on the north-eastern corner of the south-western plot allotted to the plaintiff was 4 cuboid equivalent to 6 feet, contended that they were using the plaintiff's south western plot to take their carts to the defendants north-western part without having any defined course of track and that the plaintiff, who highhandedly cut and removed the Palmyra trees on the border of the defendant's land on the north-western portion, besides preventing the defendants from using the south- eastern plot allotted to the plaintiff tried to obstruct the defendants from using the suit cart track shown as "ABCD" in the plaint plan to reach the north western plot allotted to the defendants from the south eastern plot which also was allotted to the defendants and that only with a view to prevent the defendants from using the suit passage shown as "ABCD" in the plaint plan, the present suit came to be filed. Based on the pleadings, they prayed for the dismissal of the suit.