V K RAMASAMI GOUNDER Vs. P RAMASAMI GOUNDER

JUDGEMENT

(1.) THE plaintiffs in O.S. No.1934 of 1970, on the file of the Court of Additional District Munsif, Namakkal, are the appellants in the above second appeal. THEy filed the suit for declaration of the plaintiffs title to A and B schedule properties, or in the alternative, to declare that the plaintiffs are entitled to the right of cart track, for their men, cart and cattle through the "CDE" portion of the suit "A" schedule property, and to declare the title of the plaintiffs to the suit "B" schedule property and for permanent injunction, restraining the defendant from interfering with the plaintiffs" peaceful possession and enjoyment of the suit "A and B" schedule properties.

(2.) THE case of the plaintiffs before the trial court, as disclosed in the plaint, which had undergone an amendment, after remand in S.A. No.578 of 1977, by this Court was that the plaintiffs 1 to 4 are the sons of the 5th plaintiff, that the defendants 1 to 3 are brothers, that the plaintiffs 1 to 4 purchased lands in Survey Nos.25/9 and 24/4 along with portions of S.No.55/12 of Vennandur village, under a registered sale deed dated 1.6.1968, from one Palanisamy Chettiar and others and filed Nos.24/4 and 55/12 were said to be originally owned by one Vennandur Ramaswamy Chettiar, and the defendants were said to have purchased portions of field No.55/12, from the heirs of Vennandur Ramaswamy Chetty, excepting "CDE" portion, shown in the plaint plan to be read as part of the plaint. THE said Ramaswamy Chetty, during his life time was said to have sold a portion of the field No.55/12 to one Minnakkal Ramaswamy Chetty, who in turn sold to one Ramaya Gounder, the vendor of the present defendants and the other portions of field No.55/12 had been purchased by the defendants under a sale deed dated 8.5.1941. THE further case of the plaintiffs was that the vendor under both the sale deeds has reserved the "CDE" portion shown in blue colour in the plaint plan to themselves and that "EFGH" marked portion in "B" schedule also had been reserved by the vendors at the time of those sale deeds. THE claim is sought to be projected on the basis that there are specific recitals about the reservation of the portion set apart for taking carts, cattle and men. Further, S.Nos.55/1 to 11 of Vennandur village, are said to be the ancestral properties of the plaintiffs, and that a panchayat road, runs in S.Nos.57, 58, 64 and 65, and from the Panchayat Road fields No.24/4 has to be reached only along with "ABCDE" pathway, of width of about 9 feet, as shown in the plaint plan, that in field No.55/ 12, there is a stone revetment on the eastern side, which runs north to south, that in "CD" portion, there is well-built stone revetment on one side and the owners of field Nos.24/4 and 55/12 have been using the "ABCDE" pathway to reach the field No.24/4. THE vendors of those lands and their predecessors in title were said to have been using "ABCDE" portion as a cart track peacefully, openly, continuously without let or hindrance as of rights for period of more than eighty years, and on "AB" portion, the plaintiffs" right to use the suit cart track was not interfered with by the owners of S.Nos.59 and 56. Field Nos.55/12 and 24/4 were said to have been originally owned by one owner and the plaintiffs are entitled to "CDE" portion as an easement of necessity. THE plaintiffs assert their claim for such right by prescription also, in the light of the use claimed by them as also by their predecessor in title for more than 20 year's and 2 years prior to the filing of the suit, THE claim is sought to be also justified as an easement of grant, in so far as it relates to the cart track "CDE" by virtue of the purchase under the sale deed in their favour. On the allegation that the defendants are attempting to interfere with the use of me cart track by the plaintiffs, the suit came to be filed for the reliefs referred to supra. An alternative plea has also been raised, that if the court concluded that the plaintiffs are entitled only to a right of easement for taking their men, cattle and cart over "A" Schedule property, and not for the relief of declaration that the plaintiffs are entitled to take their men, cart cattle over the suit "A" Schedule properties, and the plaintiffs have got absolute title over the "B" Schedule properties.

(3.) BY an additional written statement filed by the 1st defendant, adopted by the other defendants, it was also contended that the vendors of the plaintiffs never reserved the "CDE" portion for themselves and were granting easement right to purchasers over "CDE" portion and after the plaintiffs purchased the properties, they were given absolute rights over that, and that the plaintiffs claim that they were entitled to" AB" schedule properties were denied as false. The vendors of the plaintiffs were said to have parted with "A" schedule property, and therefore, the plaintiffs were not entitled to the alternative prayer.