JEYABALAN Vs. V BAL NAICKER

JUDGEMENT

(1.) The appellants are the unsuccessful defendants in O.S. No. 227 of 1978 on the file of the District Munsif court filed by the plaintiff/ respondent for declaration, mandatory injunction and consequential relief of permanent injunction. They have filed the Second appeal after having lost in both the courts below.

(2.) The case of the plaintiff is. this. The plaintiff has got a land bearing R.S..No. 412/ 1(a). The pathway marked as A B C runs in between the patta lands and terminates in the lands bearing R.S. Nos. 413 and 412/l(a). The pathway has been in existence from time immemorialand the plaintiff had the origin in last grant. The suit pathway has been recited in the sale deed by which the plaintiff purchased R.S. No. 412/1 (a), and also in the partition deed by which the properties were allotted to the defendants. Due to enmity, the defendants highhandedly caused obstruction at point .'C' by putting up thorny fences. Hence, the plaintiff prayed in the suit for a declaration that the plaintiff is entitled to right of access to his field S.F. No. 412/1A through the pathway A B C, to direct the defendants by mandatory injunction to remove the obstruction at point 'C' and to restrain them by permanent injunction from interfering with the user of the pathway A B C by plaintiff for access to his field S.F. No, 412/1A. The defendants resisted the suit by putting forward the case-which is as follows; The pathway BC is part and parcel of the land of the defendants 1 and 2. The plaintiff is not entitled to any pathway right in the lands of the defendants much less the alleged suit pathway. The plaintiff has not reserved or claimed any pathway right in S.F. 458, 449 and 411 to reach his land in R,S. No. 412/1 (a). The plaintiff has purchased north south cart track from one Karuppanna Gounder under a registered sale deed dated 6.11.1971 to reach his land from the southern east west poramboke pathway. As such, the suit is liable to be dismissed.

(3.) After trial, on consideration of the materials placed by both the parties, the lower court decreed the suit granting the reliefs sought for.