PALANISAMY Vs. MUTHUSAMY GOUNDER

JUDGEMENT

(1.) THIS second appeal has been preferred against the decree and judgment in A.S.No.108 of 1997 on the file of the learned Principal District Judge, Erode, which had arisen out of the decree and judgment in O.S.No.190 of 1996 on the file of the Court of Principal District Munsif, Erode. The plaintiff in O.S.No.190 of 1996 in whose favour the learned trial Judge had passed a decree, but has lost his case in appeal before the first appellate Court in A.S.No.108 of 1997, is the appellant herein. The plaintiff had filed the suit for bare injunction against the defendants in respect of the plaint schedule property.

(2.) THE averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows:-2(a) THE plaint schedule properties are situated at Nanjanapuram village, Erode Taluk. THE defendants 1 to 3 are brothers and sons of one Appachi Gounder. THE 4th defendant and the said Appachi Gounder are brothers. THE defendants 5 to 7 are the sons of 4th defendant. THE grand-father of the plaintiff is one Pongianna Gounder. Likewise, the grand-father of the defendants 1 to 3 and 5 to 7 and father of the 4th defendant is one Marappa Gounder. THE said Marappa Gounder and Pongianna Gounder are brothers. THEy had properties. THEy felt inconvenience in joint possession among them. Hence, the grand-father of the plaintiff, the father of the defendants 1 to 3 and 4th defendant were partitioned their properties under a registered partition deed dated 21.09.1955. Under the said partition deed dated 21.9.1955 'A' schedule to the partition deed was allotted to the father of the plaintiff viz., Pongianna Gounder (2), and 'B' schedule property was allotted to the father of the defendants 1 to 3 viz. Appachi Gounder. In the said partition there was a general provision made for pathway and cart-track to reach the respective portion of the sharers. THE said pathway and cart-track were used by all the parties commonly. Eversince the deed of patition dated 21.9.1955 the grand-father of the plaintiff was in possession and enjoyment of the properties allotted in the said partition and was using the common pathway and cart-track to reach his lands till his death. THE grand-father of the plaintiff had two sons viz., Pongianna Gounder(2), the father of the plaintiff and one Chinnathambi Gounder. After the death of their father, they were jointly enjoying their properties allotted to their father in the above said partition deed dated 21.9.1955. Again they had partitioned their properties under a registered partition deed dated 16.09.1964. In the said partition, 'A' schedule was allotted to the father of the plaintiff and 'B' schedule was allotted to Chinnathambi Gounder and retained the common cart-track and pathway as stated in the above said earlier partition deed dated 21.9.1955. Ever since then the father of the plaintiff was enjoying the 'A' schedule properties and was using the common cart-track and pathways to reach his lands. THE lands and the common cart-track and pathways are the suit properties. THE father of the plaintiff had paid kists due to the Government. THE plaintiff has produced the partition deeds and available kist receipt along with the plaint. 2(b)THE father of the plaintiff became very old and hence he did not look after the pannayam (Cultivation). Hence, he executed a release deed and handed over the entire family properties including the suit properties to the plaintiff under a release deed dated 27.1.1990. THE release deed has been produced along with the plaint. Ever since then the plaintiff is in possession and enjoyment over the suit properties and other properties and using the common pathway and cart-track to reach his lands. THE plaintiff has paid kists due to the Government. A plan was also produced by the plaintiff to show the suit properties. THEre was a misunderstanding arose between the plaintiff and the defendants in the temple festival. Due to the said enmity, the defendants wanted to give trouble to the plaintiff. In fact on 21.1.1996 while the plaintiff was walking through the suit pathway to reach his land, the defendants with a band of rowdies and attempted to prevent the plaintiff to use the suit pathway and cart-track. THE plaintiff foiled out their unlawful attempt with the help of neighbours. THE defendants went away proclaiming that they would gather more men and material and would prevent the plaintiff in future at any costs. If they succeed in their unlawful attempt then the plaintiff will not reach his lands and the plaintiff will be put to irreparable loss and hardships and the same cannot be compensated by any means. Under the law the defendants have no right to prevent the plaintiff to make use of the suit pathway-cum-cart-track, since it is common to both the plaintiff and the defendants. Hence, the plaintiff has come forward with this suit for permanent injunction and for costs.

(3.) THE following substantial questions of law arose for determination:-1) Whether the decree and judgment of the Lower Appellate Court is an error in law for declining to give importance to the intention of the parties and recitals in Ex.A.1?.2) Whether on the facts and circumstances of the case and in the light of Exs.A.1, A2, A8, A9 and Ex.B.5 and the admission of D.W.1, the findings of the Lower Appellate Court is correct in law for holding that the respondents are also having lawful interest over the suit property?.3) Whether the findings of the Lower Appellate Court is correct in law, when the parties to the document, Ex.A.1 agreed to abide by the recitals and stopped from varying the terms?.