M SINGAMA REDDIAR Vs. S ERAMALLU GOUNDER

JUDGEMENT

(1.) THE plaintiff is the appellant. THE plaintiff filed the suit for declaration in respect of cart track and for mandatory injunction directing the defendant to remove obstruction place in the said passage.

(2.) THE case of the plaintiff is as follows: An extent of 4 cents in S.No. 17/5 out of 9 cents belongs to Mathi Chettiar. He purchased the same under sale deed dated 2.12.59. THE plaintiff purchased an extent of 2 cents on the South out of four cents under sale deed dated 21.11.60 from Mathi Chettiar for Rs. 300/-. THE vendor kept two cents on the North. Since, there was no approach for the southern two cents even at the time of sale, the plaintiff purchased the southern two cents with passage on the northern property. THE sale deed itself makes it clear that the plaintiff has got right to take cart and cattle and use the western property on the north as passage. Hence, the plaintiff had purchased right of passage as described in the sale deed, Mathi Chettiar sold northern two cents to his sons Alagarsamy and Gurusamy under sale deed dated 4.9.63 for a normal price. THEy were aware of their father's right and also the right of the plaintiff. Hence, they have purchased the extent with the liability. THE plaintiff again purchased one cent of share from Alagarsamy under sale deed dated 20.4.66. THE said portion is just north of plaintiff 2 cents already purchased. Alagarsamy had also referred to the said Vandipathai in the sale deed. THE plaintiff has been using the cart track and he has got right. Gurusamy son of Mathi Chettiar who was entitled to northern one cent had put up a small thatched shed only in 1965 leaving the passage. He has not put up any construction or obstruction in the passage. THE plaintiff has been in possession and enjoyment of the passage by taking his cart and cattle. THEre was no obstruction till Gurusamy sold the same to the defendant on 31.3.80. THEre was no construction in the one cent belonging to Gurusamy. Only a thatched shed without any walls was there and it was also in a dilapidated condition. THE defendant has purchased only a vacant site and there was no construction. THE defendant now unlawfully without any right put up a tiled shed obstructing the passage. THE defendant has no right to place any obstruction in the passage. THE plaintiff issued notice to defendant and the defendant issued reply containing false particulars. Gurusamy the defendant's vendor never put up thatched construction in the entire one cent as alleged in the notice. He has put up only small shed without obstructing the plaintiffs right. THErefore, the suit is filed for declaration and mandatory injunction.

(3.) IT is alleged in the plaint that the plaintiff purchased right of way on the northern two cents under sale deed Ex. A-1. In Ex. A-1, sale deed, it is specifically recited that Mathi Chettiar sold two cents out of four cents and that right of passage on the west of remaining two cents was also given to vendee. IT is recited thus:- Tamil