P PERIYASAMY Vs. M S AMIRTHALINGAM

JUDGEMENT

(1.) The unsuccessful second defendant before the Courts below is the appellant herein. The suit in O.S.No.65 of 2009 was filed by the plaintiff seeking declaration of his common right over 'A' schedule property and for consequential permanent injunction restraining the defendant from interfering with his common possession and enjoyment of the same and also for permanent injunction restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment over the 'B' schedule property.

(2.) The case of the plaintiff is that the first defendant's father and the plaintiff are brothers and sons of one late Unnamalaiammal. The suit 'B' schedule property in Old Town Survey No.897/3, New Town Survey No.50/3 and 50/4 originally belonged to the plaintiff by virtue of a sale deed dated 11.01.1959. The property on the south of 'B' schedule property in T.S.No.50/4 belongs to plaintiff's mother Unnamalaiammal, by virtue of a sale deed dated 14.10.1971. On 21.06.1972, the said Unnamalaiammal had executed a Will bequeathing her various items of properties to her heirs and plaintiff's sons. In the said Will, the above mentioned 'B' schedule property purchased under sale deed dated 14.10.1971 was given to Vaiyapuri, who is one of her sons-in-law. Thereafter, on 08.04.1986, the said Unnamalaiammal had sold an extent of 3000 sq.ft on the Eastern corner of the property covered under Sale Deed dated 14.10.1971 to one Mohana Balusamy. Subsequently, on 09.06.1989, the said Unnamalaiammal had executed a codicil to her earlier Will dated 21.06.1972 and made certain changes in respect of the property covered under Sale Deed dated 14.10.1971. Accordingly, the plaintiff and the first defendant were alloted "A" schedule property for their common enjoyment. Again, on 31.05.1991, the said Unnamalaiammal had sold another extent of 3000 sq.ft on the Southern corner of the suit property to one L.G.M.Financing and Agro Private Limited. The said Unnamalaiammal died on 13.08.1995 and the Original Will dated 21.06.1972 and Codicil dated 09.06.1989 became operational and the respective parties, who got the bequest, were in possession and enjoyment of the same. As per the Codicil, 10 feet width and 200 feet length common passage was formed on the Northern corner of T.S.No.50/4 and the plaintiff has been using the above common passage as an access to his property, which is covered under T.S.No.50/3. As there was difference of opinion between the plaintiff and the first defendant, the first defendant was trying to sell the "A" schedule property claiming that it entirely belonged to him. It is also stated that the first defendant had tried to construct a ditch, drainage pipelines and also electric post in the said property. The first defendant also attempted to trespass into the suit "B" schedule property. Hence, the suit has been filed. Pending suit, the first defendant had sold the suit property to the second defendant.

(3.) Resisting the suit, the defendants filed their written statement denying the allegations made in the plaint. It is contended that the plaintiff was not a party to the codicil dated 09.06.1989. As the plaintiff was not a co-owner with the said Unnamalaiammal, he had no legal right to claim the easementary right over the suit property for common passage. Hence, they prayed for dismissal of the suit.