P SELVARAJ Vs. P SWAMI NADAR

JUDGEMENT

(1.) This sec and appeal is directed against the judgment and decree of the learned Subordinate Judge, Nagercoil, dated 29.7.1986 in A.S. No. 2 of 1986 in partly allowing the judgment of the learned Principal District Munsif, Nagercoii in O.S. No. 1041 of 1982. The defendants in the suit are the appellants in the second appeal.

(2.) The suit is filed for permanent injunction restraining the defendants from encroaching upon or making any construction over the south-eastern border of the plaint schedule property and also from blocking the pathway shown in blue colour shade in the plan annexed to the plaint. According to the plaintiff the property originally belonged to one Vethanayagam along with a larger extent. The said properties were 'hypothecated to one Madaswamy Nadar, who is the predecessor- in-interest of the plaintiffs. As the hypothecatee failed to discharge the amount due under the hypothecation deed O.S. No. 522 of 1106 M.E. was filed before the Additional District Munsif's Court, Nagercoil against the abovesaid three sons of Vethanayagam, and the suit was decreed giving a charge over the entire property covered by the hypothecation deed. In order to avoid the entire property covered by the hypothecation deed sold in court auction, the three sons of the hypothecatee executed a sale deed dated 21.10.1106 M.E. in favour of the plaintiffs predecessor in interest and conveyed to the vendee the entire plaint schedule property. While executing the said sale deed, a portion of the property was reserved with the vendors, predecessors of the defendants. Therefore, according to the plaintiffs, a portion of the hypothecated was saved from be- -ing sold. The sale, deed clearly provided for path way for access to the property conveyed from the public pathway on the South. The plaintiffs and their predecessors have been using the said pathway to get access to the property from the date of the sale deed. Therefore according to the plaintiffs, from the date of the said sale deed, the defendants' predecessors have completely lost their title and possession over the property. The defendants have no right to encroach upon any portion of the said property or to block the pathway to the plaintiffs to get access to the property. But since 3.12.1982, the defendants were attempting to encroach upon the south-eastern border. They also attempted to encroach the portion which was shown in the plan with dotted lines. They were also trying to close the pathway, leading to the plaint schedule property, pursuations to the defendant to desist from such wrongful acts were of no avail and hence the suit.

(3.) The said claims were opposed by the defendants and it is not necessary to go into the merits of the mutual claims, having regard to the ultimate decision remand this appeal for enabling the plaintiffs to amend the plaint as required under the following circumstances.