DURAISAMY Vs. CHINNAIAH GOUNDER

JUDGEMENT

(1.) This second appeal has been filed by the appellant/plaintiff challenging the judgment and decree, dated 08.03.2017, passed by the first appellate Court in A.S.No.17 of 2013, reversing the judgment and decree passed in O.S.No.33 of 2003.

(2.) The appellant / plaintiff filed the suit in O.S.No.33 of 2003 for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. According to the appellant/plaintiff, the suit property was allotted to him through partition in the year 1985 and there is a public cart track passes through the eastern side of the suit property and the same is in existence from time immemorial. The defendants 1 and 2 obliterated the said passage and encroached the same unlawfully and now attempted to form a new road through the suit land and hence, he filed the suit. According to the first respondent/first defendant, a north-south pathway has been in existence from time immemorial on the eastern side land of the plaintiff and on the western side land of the first defendant. In the sale deed of the first defendant, the public pathway is clearly mentioned. Since the disputed portion is a public pathway being enjoyed by the general public from time immemorial, the plaintiff is not entitled to the relief. The defendants 2 to 4 remained ex parte before the trial Court.

(3.) In order to establish the case, on the side of plaintiff, the plaintiff himself was examine as PW1 and Exs.A1 to A7 were marked. On the side of the contesting defendant, the first defendant himself was examined as DW1 and the two other witnesses were examined as DW2 and DW3, however, no documentary evidence was marked. On the side of the Court, the Advocate Commissioner's report and plan are marked as Exs.C1 and C2.