ARUNACHALAM PILLAI Vs. RAMU MUDALIAR DIED

JUDGEMENT

(1.) 1. 1st Defendant in O. S. No. 431 of 1977, on the file of district Munsif, Kulithalai, is the appellant. The plaintiff who is the 1st respondent in this second appeal died and his legal heirs have been impleaded as respondent Nos. 3 and 4. The parties herein will be referred to in accordance with their rank in the suit.

(2.) THE 2nd defendant is a temple, under which both the plaintiff and 1st defendant are lessees. THE suit filed by the plaintiff was one for Declaration that the lane marked as A B E F in the plan attached to the plaint belongs to the plaintiff and for a permanent prohibitory injunction restraining the 1st defendant, his men and agents from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit lane, and in the alternative to recover possession of the suit lane from the de fendant and to recover future profits and costs of the suit. As I said earlier, both the plaintiff and 1st defendants are lessees under the 2nd defendant, and they have constructed separate houses. Both of them are in possession of the respective buildings. It is the further case of the plaintiff that he is entitled to a site of 42 feet east to west and 70 feet to south which is shown as A B C D plot in the plan attached to the plaint. According to the plaintiff, the suit lane is 5 feet east-west and se parately marked as A Be F in the plaint plan and the same is running on the west of the house of the plaintiff. It is his case that he is in exclusive possession and enjoyment of the same for the last more than 40 years. It is further stated that the 1st defendant is entitled to only the site of 37 feet east west and 70 feet north-south situate on the western side of the plaintiff's site, where he has constructed his house. That portion of the 1st defendant's property is marked as A B G H in the plaint plan. It is further stated that separating the two plots of the plaintiff and 1st defendant, there was a thorny fence and in course of time it got effaced, and when the plaintiff wanted to reconstruct the fence, the same was objected to by the 1st defendant. THE suit was therefore, necessitated for the reliefs stated above.

(3.) AGAINST the revised judgment dismissing the suit, an appeal was taken before the lower Appellate Court as AS No. 137 of 1981, on the file of Subordinate Judge at Karur. The lower Appellate Court partly allowed the appeal, and held thus:- "i am of the view that neither the plaintiff nor the first defendant has established their exclusive title to the suit lane and the plaintiff is not entitled to get any declaration or injunction or in the alternative for recovery of possession of the property. " The lower Appellate Court did not end with that finding, but further went on and said thus:- "there is also no material to come to the conclusion that the first defendant has perfected his title to the suit lane by adverse possession. No construction has been made by the first defendant and the suit lane portion remains only a vacant site. Hence it cannot be said that the first defendant alone has been exclusively using the same ousting the right of the plaintiff. Taking into consideration the available materials a finding can be given that the lane portion measuring 6'4" width east west has to be kept in common for the convenient enjoyment of the plaintiff as well as the first defendant to the entire length. Hence the points are answered accordingly. " The decretal portion of the judgment of the lower appellate Court reads thus:- "in the result the appeal is allowed in part and the judgment and decree of the lower Court are set aside and declaration is given that the suit is a common lane belonging to the plaintiff and the first defendant and each should enjoy the same without causing detriment to the other person. The drainage of the plaintiff running in the lane portion has to be removed and he should make separate provision for his drainages water. In other respect the suit is dismissed. In the peculiar circumstances of the case the parties shall bear their costs throughout. "