PERUMAL Vs. CHINNAMMAL

JUDGEMENT

(1.) THIS second appeal has been filed against the judgment and decree, dated 17.8.2005, made in A.S.No.217 of 2003, on the file of the Principal District Judge, Namakkal, confirming the judgment and decree, dated 10.3.2003, made in O.S.No.157 of 2002, on the file of the Principal District Munsif, Namakkal.

(2.) THE defendant in the suit O.S.No.157 of 2002, is the appellant in the present second appeal. THE plaintiffs, who are the respondents in the second appeal, had filed the suit praying for the reliefs of declaration and for permanent injunction.

(3.) IN the written statement filed on behalf of the defendant, it has been stated that the suit filed by the plaintiffs is unsustainable, both in law and on facts. The portions shown as B.1 and B.2 in the plan filed by the plaintiffs are the house and the vacant site. The portion shown as B.3 does not belong to the plaintiff exclusively. It is a common passage running from south to north. The B.3 passage proceeds further south to reach the main road of the village. The portions shown as D.1 and D.2 belong to the defendant. It is for the plaintiffs to prove that they had purchased the B.1 and B.2 suit property. If the plaintiffs had purchased the properties, including the common passage of the Village, it would not be binding on the defendant's right of possession and enjoyment of the same. It is accepted that the defendant does not have any right or title in the portions B.1 and B.2 belonging to the plaintiffs. However, the portions B.3 does not belong to the plaintiffs exclusively. The defendant also has the right of use of the common passage. The defendant has been using the door ways provided in the southern portion of the compound in the passage. Further, the suit common passage is 15 feet wide south-North and it is being used as a passage as found by the Commissioner appointed by the Court. Further, the common passage has been in existence from time immemorial, long before the defendant had purchased the portions D.1 and D.2. The plaintiffs have not been objecting the use of the common passage by the defendant. There is no other passage to reach the D.1 and D.2 portions belonging to the defendants. If there was any other passage, the plaintiffs would have shown the same in the rough plan filed by them. Even the Commissioner appointed by the Court has not shown any such pathway in his sketch. Those who are using the passage are using it for taking cattle and carts and other vehicles. IN such circumstances, the suit is to be dismissed with costs.