M SELLAPPAN Vs. ATHIAPPAN

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed the suit for the reliefs of (i) permanent injunction restraining the defendants from interfering with his right to use the common lane AB and CD and water from the common well in the suit A schedule property shown in the plaint rough plan; (ii) for specific performance directing the third defendant to execute the sale deed conveying the B schedule property to the plaintiff within the time to be fixed by the court and in default to execute the sale deed; and (iii) for permanent injunction restraining the defendants from interfering with the peaceful possession, occupation and enjoyment of the suit B schedule property.

(2.) THE gist of the case is as follows: - THE plaintiff and the defendants 1 to 3 are the sons of the deceased Muthu Gounder and all of them constituted a Hindu Joint Family. THE eastern portion of the A Schedule property is the ancestral property of the plaintiff and the defendants 1 to 3 which remains undivided by metes and bounds even though they are in possession and enjoyment of specific portion in pursuance of the family arrangement. THE plaintiff put up residential buildings over the A schedule having separate mess. He also dug up a well out of his funds and all the 4 brothers are jointly enjoying the same and for convenience usage they had a common lane described as ab and CD for easy passage from the main road to reach their respective properties and they have been using the two lanes for the past 25 years openly, continuously and peacefully without any obstruction.

(3.) ON the above pleadings the Trial Court decreed the suit granting the reliefs as against defendants 2 and 3. Against the same, the defendants 2 and 3 preferred an appeal and the first appellate court modified the judgment and decree of the trial court negativing the relief granted for specific performance of the sale agreement. In other respects it confirmed the decree of the trial court. Hence the second appeal by the plaintiff.