VISWANATHAN Vs. K ARUNAGIRI

JUDGEMENT

(1.) THE first defendant in the Trial Court is the appellant and has filed the second appeal having suffered a decree in both the courts below. THE plaintiffs, who are the respondents 1 and 2 herein have filed the suit for a permanent injunction against the defendants including the appellant herein from obstructing the plaintiffs from using the suit mud road to reach the property of the plaintiffs, situated on the Western side and also for an injunction from obliterating the mud road. THE schedule to the plaint contains the plaint property has comprised in Survey Nos. 160, 161, 162/1, 162/2, 183/a1, 183/b2 and 184.

(2.) THE first defendant has filed a written statement specifically stating that the plaintiffs are having alternative cart track through the third defendant's lands called Pallathottam comprised in Survey nos. 185 and 186 to reach the plaintiff's property situated in Survey No. 183 and the first defendant has relied upon Ex. B. 1 sale deed dated 22. 11. 1923. It was also the specific case of the first defendant that the plaintiffs have never used the passage from Vellakinar main road and the said passage was exclusively belonging to the first defendant.

(3.) IN any event, according to the learned counsel for the first and second respondents, these are the findings of fact and there was absolutely no substantial question of law involved in this case. While admitting the second appeal the following substantial questions of law were framed - 1) whether the courts below are correct in law in casting the burden upon the first defendant to prove his exclusive ownership of suit cart track totally over looking the fact that it is for respondents 1 and 2 as plaintiff's to prove their claim that the suit cart track is common to all? 2) whether the courts below are correct in law in directing the suit solely based on the report, plan and photographs of the advocate Commissioner?