VISWANATHAN Vs. R SIVAKUMAR

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.) It is also the admitted case of the plaintiffs that such alternate passage was in fact available but that reaches from Mettupalayam road upto the Railway track on the eastern side and beyond that the vehicles cannot be carried. The courts below have also found that the first defendant as d. W.1 has admitted in his evidence that even though the East-west passage is running in his property, on the Northern side from Vellakinar main road running East-west, there is a barbed fence and it is on the Northern side of the said barbed wire fence the suit passage is situated. It was based on the said facts and evidence the courts below have come to the conclusion that the suit passage does not belong exclusively to the first defendant. Further, it was based on the evidence of the first defendant as D. W.1 the courts below have come to the conclusion that the suit passage does not exclusively belong to the first defendant. That apart, the Advocate Commissioner's report and the photographs marked as Ex. C1 to C3 has been relied upon by both the courts below to conclude that beyond the Railway line the vehicles cannot be carried, since the Railway track is elevated.