MUTHU GOUNDAN Vs. ANANTHA GOUNDAN

JUDGEMENT

(1.) The 1st defendant is the appellant. The suit was brought claiming the following reliefs: (1) The establishment of the plaintiff s right of way, marked A-B in the plaint plan, through the land of the defendant on to the plaintiff s land: (2) For an injunction to the defendants to remove the fence which they put up across the path about 10 months before the suit: (3) For the issuing of a permanent injunction against the defendants obstructing the path.

(2.) The lower Appellate Court (as I read its judgment) came to the following conclusions: (a) The plaintiff and his predecessors-in-title to the dominant tenement, were using the plaint path for much longer than 20 years before the interruption took place in September 1910 by the act of the defendants putting up the fence. (The suit was brought in July 1911 and the evidence of the plaintiff s 2nd witness speaks to the enjoyment for 40 years). (b) Though the 1st defendant objected to the plaintiff using the way in 1907 or 1908, the plaintiff did actually continue to enjoy the right of way till the fence was put up in September 1910. The plaintiff says in his evidence "the path was not closed" till 1910; "the pathway was closed, only five or six days prior to the filing of the suit." I think the word "suit" in this sentence is a mistake for the criminal complaint which was filed in August or September 1910. "Before that the defendants were objecting orally." (c) The suit was not barred by the two years period of limitation prescribed by the Limitation Act as the cause of action arose only in 1910 within a year before the suit and not in 1908 or 1907, the plaintiff not having had any interruption or restriction in the enjoyment of his rights.

(3.) On these findings, the decree of the District Munsif in plaintiff s favour was confirmed by the lower Appellate Court. Mr. K.S. Ganesa Aiyar, Vakil for the appellant, argued. (a) that the oral objections and disputes admittedly raised by the 1st defendant (see Exhibit III) in 1907 and 1908 prevented the plaintiff from acquiring a right of easement by prescription under Section 26, Clause 1, of Act IX of 1908; (b) that Section 26, Clause 1, of Act IX of 1908, means (if I understood his contention aright), that a suit brought more than two years after such oral objection and dispute raised by the defendant entailed the dismissal of such a suit as barred by limitation.