SWAMINATHA UDAYAR Vs. ARUMUGA UDAYAR

JUDGEMENT

(1.) THIS Second Appeal arises out of the Judgment and decree in A.S.No.1/2002 arising out of the Judgment and decree of the trial Court and also granting Mandatory Injunction directing removal of stone wall (fyflL). Unsuccessful Defendants are the Appellants.

(2.) THE dispute is in respect of cart-track in S.No,65/7 which is situated on the southern side of the lands of Plaintiff. Case of Plaintiff is that he owns agricultural lands in S.Nos.65/5 and 65/6 in Sokkanathapuram village, Attur Taluk and the suit cart-track is situated in S.No,65/7 on the southern side of Plaintiff's land. Further case of Plaintiff is that he has got right of access to his lands from any point of the suit cart-track, which is common to the Plaintiff and Defendants. It is further stated that due to previous enmity, Defendants arranged to put up a stone wall (fyflL) along the northern boundary of the suit cart-track and annexing the same to their Patta land on or about 1st September 1997. THErefore, Plaintiff filed the suit for (i) Declaring that Plaintiff has got right to have access to his Patta lands from the suit cart-track (ii) Permanent Injunction restraining the Defendants and their men and agents from in any way interfering with the peaceful enjoyment of his right of access to the Patta land from the suit cart-track and (iii) Mandatory Injunction directing the Defendants to remove the obstructions created by them by putting a stone wall along the northern side of cart-track.

(3.) UPON consideration of evidence, trial Court held that Plaintiff is entitled to use suit cart-track without disturbing the cart-track and the stone wall and trial Court also granted Permanent Injunction restraining the Defendants from interfering with the suit cart-track. On the basis of Commissioner's Report, trial court further held that Plaintiff was not using the cart-track on the western side of his Well portion, since the said portion of his land is 3 feet lower than the cart-track. Referring to the evidence of DWs.2 and 3, trial Court further held that the stone wall was constructed only as per decision of the panchayatdars. In so far as relief of Mandatory Injunction is concerned, trial Court held that if the stone wall on the northern side of cart-track is removed, the cart-track cannot be used and the trial Court declined the relief of Mandatory Injunction.