R SENGODA GOUNDER Vs. SENGODA GOUNDER

JUDGEMENT

(1.) THESE two Second Appeals arise out of a common judgment of the learned Additional District Judge, dated 11.4.1985 in A.S. Nos. 161 and 162 of 1984 confirming the judgment of the learned Principal District Munsif, Erode, in O.S. No. 1629 of 1980 and O.S. No. 257 of 1983 dated 6.4.1984. The plaintiffs in O.S. No. 1629 of 1980 and the defendants in O.S. No. 257 of 1983 being the same individuals, are the appellants in the above Second Appeal.

(2.) O.S. No. 1629 of 1980 was filed by the appellants herein contending that plaintiffs 1 and 2 are brothers, third plaintiff being the mother of plaintiffs 4 and 5 and elder sister of the sixth plaintiff. According to the plaintiffs there was a North-South itteri on the eastern side of the lands of the plaintiffs and the land of plaintiffs 1 and 2 is on the south and the lands of the plaintiffs 3 to 6 are on the North. According to the plaintiffs, there is an East-West itteri running in between these lands and there was a fence on the northern boundary of the property belonging to plaintiffs 1 and 2 which was marked as A B in the plaint plan and the said fence was in existence for more than 80 years. Plaintiffs 1 and 2 have been enjoying the lands up to this fence and there is a fence marked as C D in the plaint plan on the southern end of the land which belongs to plaintiffs 3 to 6. The said fence is also in existence for many years and Karuppanna Gounder, the husband of the third plaintiff settled that property on plaintiffs 3 to 5 under a document dated 24.1.1973. On the south eastern corner of his land, the sixth plaintiff had put up a salai and using the same for thithering his cattle. According to the plaintiffs, people used to walk through the east-west itteri and nobody has taken any carts or other vehicles through the said itteri at any time. The breadth of the itteri was 7 feet. The plaintiffs further plead that defendants 1 to 5 were owning lands on the west of the sixth plaintiff and the north of the suit itteri, and further north of it, the sixth defendant was owning lands. Further, in view of the misunderstandings, defendants 1 to 6 were taking measurement in the itteri and had planted some stones at a distance of 7 feet south of A B fence and 4 to 5 feet on the aorth of C D fence. The defendants were also proclaiming that they will demolish the existing boundary fence and encroach the cultivable lands up to the points where they have planted stones and thus widening the existing itteri. Therefore, the plaintiffs plead that the defendants had no right to do so. Hence the suit for permanent injunction to restrain the defendants from cutting or destroying the fences along A B and CD as marked in the plaint plan.

(3.) ON a consideration of the said pleadings and the evidence both oral and documentary, the learned Trial Judge found in favour of the defendants in O.S. No. 1629 of 1980 holding that the suit itteri was being used by defendants for the purpose of taking carts and other vehicles and as such the plaintiffs in O.S. No. 1629 of 1980 were not entitled to an injunction as prayed for by them. ON the basis of the said findings the learned Trial Judge decreed the suit in O.S. No. 257 of 1983 and granted a decree for mandatory injunction also, directing the defendants in the said suit to restore the suit itteri to a width of 10 feet by removing the fences and the trees within the itteri. ON appeal also the Appellate Court agreed with the findings of the learned District Munsif and rejected both the appeals filed by the appellants herein. Hence the above two Second Appeals.