R. ARULANANDAM Vs. K. MANI AND GANESAN @ GANAPATHY

JUDGEMENT

(1.) THIS Second Appeal has been filed against the judgment and decree dated 27.04.2000 made in A.S. No. 205 of 1999 on the file of the Principal District Court, Karur reversing the judgment and decree dated 26.02.1999 made in O.S. No. 434 of 1997 on the file of the Additional District Munsif Court, Karur. The gist and essence of averments in the Plaint is as follows: The husband of the First Plaintiff, the Second Plaintiff, the Defendant and one Viswanathan are brothers and they are the sons of Ramasamy. The said Ramasamy and his sons had partitioned their properties under the registered Partition Deed, dated 05.04.1972, which was duly executed, registered and acted upon. In the above said partition, 'C' Schedule properties were allotted to the Defendant, 'D' Schedule properties to the First Plaintiff and 'E' Schedule properties to the Second Plaintiff. In pursuance of the partition, the sharers were in peaceful possession and enjoyment of their respective shares. On the West of the Defendant's property, a common land has been allotted for common use for the parties, to the Partition Deed. The Defendant is using the same to reach his property. The Plaintiffs are reaching their properties through the red -washed pathway shown in the plaint plan. The said pathway is about 10 feet width. Except the said pathway, there is no other pathway to reach the Plaintiffs' property. The red -washed suit pathway is the exclusive pathway of the Plaintiffs. The Plaintiffs are paying kist for the suit properties. The Defendant has no manner of interest, title or possession whatsoever over the suit property. The Defendant is reaching his property, which situated on the East of the common land, through the common land. After the demise of the First Plaintiffs husband Krishnan, the First Plaintiff is enjoying his respective share as a legal heir along with her children. Now, due to the recent enmity between the Plaintiffs and the Defendant, the Defendant is attempted to obstruct the Plaintiffs for using the 'C' Schedule path way. He has no manner of right to do so. Hence, the Plaintiffs are constrained to file a Suit for permanent injunction restraining the Defendant from in any manner obstructing the Plaintiffs from using 'C' Schedule pathway and prayed for a decree.

(2.) THE sum and substance of averments in the Written Statement are as follows: The Suit is not maintainable. It is false to contend that the 'D' Schedule property in the Partition Deed has been allotted to the First Plaintiff. It is also false to contend that the western side of the Defendant's property is common property, that property has been used by the Defendant to reach his property is absolutely false and west of the Defendant's property, common property is there, common well and motor pump -set were there. So the plaint plan is not correct. Since the Plaintiff has suppressed the material facts, the Suit is liable to be dismissed. The allegation that the width of the disputed pathway is 10 feet is absolutely false. But it is only 1 1/2 feet and it is only foot pathway. It is not an exclusive for the Plaintiffs. It is a common pathway for all. It is absolutely false to contend that the Plaintiff has prescribed title by adverse possession is suit pathway. The cause of action is not correct. In the 'C' Schedule pathway, which is situated on the northern side of the Defendant's properties, there is a bore -well and 5 H.P Oil engine and there are 55 coconut trees, two mango trees and plantains were there. The Plaintiffs have taken steps to remove all the trees, since they failed to do so. Now, they come forward with the vexatious Suit. During the pendency of the Suit, the Plaintiffs have removed the coconut in the tree, which is against law. Description is not correctly given. No cause of action for the Suit as he prayed for the dismissal of the Suit.

(3.) THE learned District Munsif, Karur after considering the averments both in Plaint and Written Statement, framed six issues and considering the oral evidence of P.Ws.1 and 2 and D.W.1, documents Exs.A1 to A4, Exs.B1 to B4 and Exs.C1 and C2 and come to the conclusion that as per the Commissioner's Report, the width of the suit pathway is 11/2 feet. It is only foot pathway. It is a common pathway for both Plaintiffs and Defendant. So the Defendant is restrained to interfere with the peaceful possession and enjoyment of the Plaintiffs in the 11/2 feet common pathway and also dismissed the Suit that it is not in an exclusive pathway of the Plaintiffs. Against that, the Plaintiffs preferred an Appeal before the Principal District Court, Karur. The learned Principal District Judge after considering the averments, document and framed three points for consideration and come to the conclusion that 'C' Schedule pathway of the Plaintiffs is exclusive. So they are entitled to a decree as prayed for in the Plaint. Therefore, the Defendant has come forward with this Second Appeal. The substantial questions of law arises in the Second Appeal are as follows: