S GOVINDAN Vs. GOPALA AIYANGAR

JUDGEMENT

(1.) THIS second appeal is directed against the judgment of the learned Subordinate Judge in A.S.No.43 of 1984, dated 13.2.1984 confirming that of the learned District Munsif, Tiruchirapalli in O.S.No.594 of 1979 dated 15.9.1982.

(2.) THE plaintiff in the above mentioned suit is the appellant herein having filed a suit for mandatory injunction. THE plaintiff contended that the suit property was the self-acquired property of the father of plaintiff and the defendant. THEir father had effected a registered partition deed dated 1.6.1972. As per the said partition deed, the plaintiff was allotted the second item in "A" schedule. From the date of partition, the plaintiff and the defendant had become divided and they were in possession and enjoyment of their respective shares. THE plaintiff further contended that he has right in the common pathway from south to north. THE measurement of the same is 6.5. At the entrance from the south, there was already a common latrine existing on the extreme southern side and the plaintiff has ingress and egress in the south to north common pathway which is shown as EF in the plan, the first portion belonging to the plaintiff. THE other sharers are having equal rights to have common access to their respective property from the south and as per the recitals in the partition deed, the parties are entitled to have a common right to enjoy the common access, that the plaintiff is entitled to take water from the common well in the northern side of the defendant's property and the defendant had deliberately constructed a lavatory and bathroom in the common pathway in between the portion marked as EF and that from the newly constructed lavatory bad smell emanates and causes great danger for the health and hygiene to the inmates and that the defendant had no right to construct the lavatory and bathroom in the common access. THE plaintiff further contended that he was employed at Jabalpur and the defendant had constructed the lavatory and bathroom in February, 1979 and the same was the offending construction. THE plaintiff further pleaded that the same affected the free ingress and egress to plaintiff's right of passage and open space was causing a great danger to the health and hygiene to the inmates of the plaintiff's house and that the newly constructed lavatory and bathroom covered the major extent of the common access in front of his portion. It was further pleaded that the defendant was having open space in front of his property in the north and he could construct lavatory and bathroom in his portion. THE construction of the new lavatory and bathroom was a deliberate invasion of the plaintiff's right in the common pathway and hence the suit.

(3.) IT is the consistent plea of the plaintiff that the lavatory has been built up in a common pathway belonging to all the three brothers who were parties to Ex.A-1 partition deed. The fact that the construction had been put on in common pathway was sought to be seriously disputed by the defendant and therefore one of the main issues which were taken up for consideration by both the courts below was as regards the pleading of the plaintiff regarding, whether common pathway was correct or not. IT is rather surprising to see that the trial court even after giving a categoric finding on the basis of the partition deed as well as the admitted evidence of the defendant himself that the disputed portion was a common pathway, yet a contrary finding was also recorded to the effect that the claim of the plaintiff that the lavatory was situated in a common pathway was not proved by documentary evidence. The following paragraph is extracted to show how the trial Judge had committed a grave error confliction with his own findings. 'so from the evidence of P.W.1 and D.W.1, it is evident that the suit property is used as a common pathway among the four brothers and it is orally proved that the suit property in which the lavatory is situated is used as common pathway as claimed by the plaintiff. But in Ex.A-1, it is not specifically mentioned that the suit property is a common pathway. D.W.1 in the chief examination deposed Ex-A-1. P.W.I also in the cross examination deposed So from the evidence of P.W.1 and D.W.I, it is evident that the suit property is specifically mentioned for the use of common pathway or for any other common purpose. In the absence of documentary evidence, as per Sec.91 of the Evidence Act, I am of the view that the suit property is the common property of all the four brothers and all of them have the right to enjoy the suit property as they are co-owners of the suit property. So the property in which the lavatory is situated is a common pathway as claimed by the plaintiff is not proved by documentary evidence and as such the oral evidence adduced in this case is only specie of the genus that the common pathway is one such right of enjoyment of all co-owners and as such Issue 1 is accepted not in full but in part only. "