K.PERUMAL Vs. S.NAGALINGAM

JUDGEMENT

(1.) The first defendant, who lost the legal battle in both the Courts below, has come forwarded with this second appeal, to set aside the judgment and decree dated 31.07.2012 passed in A.S.No.21 of 2011 on the file of the Subordinate Court, Periyakulam, by confirming the judgment and decree dated 04.07.2011 passed in O.S.No.88 of 2008 on the file of the District Munsif Court, Periyakulam.

(2.) The respondents 1 and 2, as plaintiffs, filed a suit for declaration, declaring the 'A' schedule property belongs to the plaintiffs or an alternative relief of declaring that the plaintiffs are having right of easement of necessity over 'A' schedule property and consequently, restraining the first defendant, his men, agents and assigns from in anyway encroaching the constructing any new superstructures in the suit 'A' schedule property by means of permanent injunction and for mandatory injunction directing the second defendant to grant patta to the suit A and B schedule properties to the plaintiffs.

(3.) In the plaint, the plaintiffs have stated that suit 'A' schedule property is a lane (cart track) to the extent of 1 cent and the same is belonging to the plaintiffs. The undivided one half portion of 'A' schedule property was purchased by the plaintiffs' father viz., Subbiah under a registered sale deed dated 24.01.1977 and another half share also has been purchased by him under unregistered sale deed dated 16.10.1985. So, he is the exclusive owner of entire 'A' schedule property. The said property was used to go to his punja thottam, which is situated on southern side of 'A' schedule property from the puthu street, which is situated on the northern side of the 'A' schedule property. Except the 'A' schedule property, the plaintiffs are having no other way to go to their punja thottam. The plaintiffs are enjoying the suit property for more than 30 years. During the life time of the plaintiffs' father, the plaintiffs and their brothers partitioned the joint family properties. The punja thottam comprised in S.Nos.387/1, 387/2, 387/3, 391/1 and 391/3 allotted to the shares of the plaintiffs i.e. 'C' and 'E' schedule properties, as per registered partition deed dated 24.11.1993 and they are enjoying 'A' schedule property to reach the punja thottam. The brothers of the plaintiffs have executed a registered release deed dated 02.06.2008 in favour of the plaintiffs in respect of 'A' schedule property and hence, the plaintiffs are the absolute owners.