VANNIMUTHU GOUNDER Vs. P PALANISAMY

JUDGEMENT

(1.) THIS second appeal has been directed against the decree and judgment in A. S. No. 46 of 1997 on the file of the Court of Subordinate Judge, Udumalpet, which had arisen out of the decree and judgment in O. S. No. 40 of 1995 on the file of the Court of District Munsif, Pollachi. Defendants are the appellants herein. The plaintiff has filed the suit for declaration of the plaintiff's right over the plaint 'a' schedule property and also for mandatory injunction for the restoration of cart track, which is plaint 'b' schedule property.

(2.) THE short facts in the plaint relevant for deciding this appeal are as follows:-The plaintiff is the owner of the property comprised in S. F. No. 134/1 of No. Mo. Muthur Village, Pollanchi Taluk, by means of a registered sale deed dated 5. 12. 1988 purchased from one Selladurai, who in turn had purchased the same from one Shanmughasundaram in the year 1980 under a sale deed dated 17. 09. 1980. The vendors under the sale deed dated 17. 09. 1980 derived title to the property under a partition deed dated 25. 5. 1974. The predecessors in title of the property derived title by means of the partition dated dated 2. 5. 1964 and also under sale deed dated 30. 10. 1963. The defendants are the owners of the property situated on the southern side of the suit property comprised in S. F. No. 134/2 and 134/3. The entire properties have been partitioned in the year 1964 between the parties and the northern portion was allotted to the plaintiff and his predecessors in title while the southern portion was allotted to the defendants and their predecessors in title. On the southern side of S. F. No. 134 there is a common cart track run East to West. From the said common cart track a North South cart track was provided to the suit property and the same runs through S. F. No. 134/2, 134/3 on the Eastern side. The width of the cart track was about 10 feet and it reaches the suit property viz. , S. F. No. 134/1. The said cart track has been provided in the partition deed and the plaintiff has purchased the property with a specific recitals of the cart track. Eversince from the date of purchase the plaintiff is using the same without any interference. The defendants intended to purchase the suit property and having failed in their attempt had developed a hostile attitude towards the plaintiff and have been continuously causing trouble to the plaintiff. The cart track exclusively run within the defendants land and taking advantage of the same the defendants in the month of Puratasi 1994 have made obstruction here and there in the cart track and the plaintiff has with great difficulty resisted their action. Since the obstruction was continuous the plaintiff was constrained to issue a notice, dated 30. 11. 1994 calling upon the defendants not to cause further damages to the cart track. After the receipt of the notice, the defendants have completely ploughed over the cart track and gave false untenable reply notice. The defendants have contended that the plaintiff has failed to show the existence of the cart track by appointment of a Commissioner etc. The nature of prior obstruction was in such a manner to prevent the plaintiff's user but however carts can be taken along. Now, the defendants have completely ploughed over the cart track within few hours. The plaintiff's remedy is only to get the cart track restored by means of a decree through this suit. The defendants have started to obliterate initially in the month of puratasi 1994 and has completely obliterated the cart track in the 2nd week of December 1994. Hence, the suit.

(3.) THE second defendant has adopted the written statement filed by the first defendant, which runs as follows:-There is a cart track on the southern side of S. F. No. 134 to the east west. From the said cart track a north south cart track was not provided to the suit property and the same does not run through S. F. No. 134/2 and 134/3 on the eastern side. It is false to state that the width of the said cart track was about 10 feet and it reaches the suit property viz. , S. F. No. 134/2. The alleged cart tract is an imaginary one. No such cart track has ever been in existence. It is false to state that the said cart track has been provided in the partition deed. It is also equally false to state that from the date of purchase the plaintiff is using the same without any interference. The defendants never intended to purchase the suit property. The allegations that this defendant had developed a hostile attitude towards plaintiff and causing trouble to the plaintiff is false. The question of obstruction of the cart track does not arise, when there is no cart track at all. If really there was a cart track and obstruction as alleged in the notice dated 20. 11. 1994, the plaintiff could have very well took out a Commissioner to show the alleged obstruction instead of issuing the notice. The defendant have categorically denied the averments made in the notice dated 30. 11. 1994 whilso the plaintiff instead of taking a Commissioner to show the alleged obliteration has come forward with a suit belatedly. This itself would clearly prove the malafide intention of the plaintiff to create new right. The notice dated 30. 11. 1994 has been issued by the plaintiff only to create an evidence. The averment made in the plaint that after the receipt of the notice the defendants completely ploughed the cart track is false. The suit is an abuse of process of law. The plaintiff has no cause of action to file the suit. The Court fee paid is not correct. The plaintiff is not entitled to any declaration. The plaintiff has no right whatsoever over the property belong to the defendants. When there is no right in the property and when there is no cart track at all there is no question of restraing it. The alleged recital in the documents will not bind the defendants because they are self-serving documents. The defendants are not the parties to those documents. Even according to the plaintiff the alleged obstruction of the cart track by the defendant was started in the moth of Puratasi 1994 and it was completed in the second week of December-1994. If that be so the plaintiff could have very well filed the suit immediately and he could have taken out a Commissioner to prove his case. The failure on the part of the plaintiff to take such steps itself would clearly reveal the falsity of the plaintiff's case. Hence, the suit is liable to be dismissed.