V RANGA DURAI Vs. S JAYALAKSHMI

JUDGEMENT

(1.) THE plaintiffs in the Trial Court are the appellants in the Second Appeal. Originally the suit was filed for permanent injunction against the defendants from interfering with the enjoyment of the suit property by putting up septic tank or by laying underground pipe and thereafter included the relief of mandatory injunction to remove the construction stated to have been made by the defendants in the portion marked as A,b,c,d,e,f,g,d. The suit property itself is a lane measuring East West 45 cubits on the eastern side and North to South 3 cubits and the property situated in Karamadai Village, Mettupalayam, Coimbatore district.

(2.) THE plaintiffs claim to be the owners of the suit property obtained by way of registered partition deed, dated 24. 02. 1954 marked as Ex. A. 1. The first defendant has purchased the house situated immediately on the Southern side of the suit property and they have no right of way or access through the suit property, which is a passage exclusively for the plaintiffs. Taking advantage of the fact that the suit properties are the vacant land, the defendants have attempted to interfere and subsequently they have also put up the septic tank and laid down underground pipe in spite of an order of injunction and therefore, the mandatory injunction was also claimed.

(3.) ON the other hand, the defendants' case is that the suit lane is a common lane for both plaintiffs as well as the defendants. Due to the injunction order, they are not using the suit lane. It is also the case of the defendants that even before their purchase, which was on 26. 10. 1979 marked as Ex. B. 5 the predecessors in title of the defendants have also been using for a long time as a common passage and the defendants themselves who were the tenants were using the same as a common passage to reach their portion. It is also the case of the defendants that the defendants have never prevented the plaintiffs from using the suit property to reach their property. It is also their case that they have laid the pipe line only after obtaining permission from the Panchayat and they have also left sufficient space for the purpose of plaintiffs to reach their place. The defendants have also stated that after filing of the suit, they have not put up any construction. They also denied that they have made any encroachment. It is also the case of the defendants that the plaintiffs have filed earlier suit in O. S. No. 2095 of 1984 in respect of the same property and it was held on 15. 02. 1985 in the said suit marked as ex. B. 4 that the plaintiffs are not the owners of the property. The copy of the plaint as well as the written statement and also Commissioner's report in the said suit have been marked as Exs. B. 1, B. 2 and B. 3. Therefore, according to the defendants, the suit is hit by principles of res judicata. After appreciation of the entire evidence and also documents, the Trial Court has decreed the suit. On the appeal filed by the defendants in A. S. No. 26 of 1994, the First Appellate Court has reversed the finding of the trial Court by dismissing the suit. It is as against the said judgement and decree of the First Appellant Court. the plaintiffs have filed the Second Appeal.