ESWARAMOORTHY Vs. KOMARASAMY GOUNDER

JUDGEMENT

(1.) This appeal is preferred by the 1st defendant in O.S.No.617 of 1996 against the concurrent finding of the Courts below. The suit is filed for declaration and injunction on the premise that the suit cart track in S.No.537/6 with 4.6 meters breadth and 110 meters length is owned by the plaintiff, in which the defendants have encroached upon it and raised sugarcane and toboco. After obliterating the cart track, since the defendants are trying to further obliterating, injunction is also sought for.

(2.) According to the plaintiff, large extend of ancestral land inclusive of the subject suit property was divided among the plaintiff and one Muthusamy gounder, vide partition deed dated 27.06.1955 (Ex.A3). In the said deed, the 'A' schedule property along with the cart track on west and south of it were allotted to him. The 'B' schedule property on the south of the east-west cart track was allotted to Muthusamy gounder. Originally, these properties fell under old P.No.37/A1 and P.No.37/A3. Later, after resurvey, they were assigned S.Nos.537/6, 537/7 and 537/8. The cart track bearing old S.No.37/A3 was assigned S.No.537/6. The land under 'A' schedule is S.No.537/7 and the land allotted to Muthusamy falls under S.No.537/8. The defendants, who purchased the property in the year 1981 under Ex.B1 and Ex.B2, have no right or title over the land in S.No.537/6 used as cart track by the plaintiff's family. Neither the vendor of the defendants nor the vendor of the vendor Pappammal, w/o Muthusamy have right over the suit property. The defendants have obliterated the cart track and cultivating on it. Hence, suit for declaration of title and injunction not to further obliterate the suit cart track.

(3.) The defendants contested the suit questioning the title of the plaintiff over the suit property and the usage of the suit property as cart track by the plaintiff and his family members. The specific case of the defendants is that there is no cart track in existence as alleged by the plaintiff and even if there was a cart track existed earlier the plaintiff has abandoned his right for a quiet long time and presently the plaintiff is not in possession of the suit property. Hence, he is not entitled to the claim.