CHINNAMMAL Vs. ATHIYANNAN

JUDGEMENT

(1.) THE Plaintiffs in O.S. No. 242 of 2009 on the file of the learned Additional District Munsif, Tiruchengode are the appellants in this second appeal. The Plaintiffs have instituted the suit for a bare injunction to restrain the defendants/ respondents herein and their men from in any way interfering with their peaceful possession and enjoyment of the suit property. The suit is pending. Pending suit, the plaintiffs have filed I.A. No. 390 of 2013 in O.S. No. 242 of 2009 under Order VII Rule 11 read with Section 151 of CPC praying to reject the counter claim made by the respondents/defendants. The said application in I.A. No. 390 of 2013 was allowed by the trial court on 26.07.2013. As against the same, the defendants/ respondents herein have filed A.S. No. 20 of 2013 before the Sub Court, Tiruchengode, which was allowed on 18.03.2014. The present second appeal is filed against the order dated 18.03.2014 passed in A.S. No. 20 of 2013.

(2.) ACCORDING to the plaintiffs, the second and third plaintiffs are the son and daughter of the first plaintiff. The suit property is the ancestral property of the plaintiffs. The suit property along with other properties have been purchased by the paternal grandfather of the second and third plaintiffs namely Sengoda Gounder, son of Samy Gounder on 04.05.1964 under a registered sale deed. The said Sengoda Gounder had three sons namely Chinnana Gounder, Chettikumara Gounder and Late. Samy Gounder. Samy Gounder is the father of the second and third plaintiffs and husband of the first plaintiff. After the demise of Sengoda Gounder, his sons had partitioned their properties including the suit properties by means of a registered partition deed dated 16.07.1982 by which the suit property was allotted to the second plaintiff and his deceased father Samy Gounder. The suit property was morefully described as Schedule "D" in the partition deed dated 16.07.1982. From the said date, the second plaintiff along with his father late. Samy Gounder were in possession and enjoyment of the suit property. On 16.12.1995, Samy Gounder died leaving behind the plaintiffs as his legal heirs. The Plaintiffs also mutated their name in the revenue records in respect of the suit property and they are paying kist and other taxes to the authorities concerned. While so, the defendants, who are having their lands on the eastern side of the suit property, without any right, authority or interest attempted to interfere with the suit property. On 28.02.2009, the plaintiffs have given a complaint to the Pallipalayam Police Station complaining illegal attempt made by the defendants to trespass into the suit property. As no action has been taken on the basis of the said complaint, the plaintiffs have filed the suit.

(3.) THE defendants resisted the suit by filing a written statement on 29.10.2009. According to the defendants, the plaintiffs have suppressed the existence of a cart track on the Southern side of the land in Survey No.119/2A of Southapuram Village, Tiruchengode Taluk. The said cart track is in existence for more than 72 years. The Plaintiffs cannot assert exclusive right over the entire extent of the suit property. The Plaintiffs cannot claim any right over the cart track measuring 15 feet links running East to West. The existence of cart track is also indicated in the registered partition deed dated 16.07.1982. The defendants are not strangers to the suit property. The father of the first defendant Paramu Gounder purchased the land in Survey No.119/2B in an extent of 1.90 cents from Palani Gounder, son of Sellappa Gounder by a sale deed dated 10.08.1948. After the death of Paramu Gounder, his son Athiyannan and grand sons, who are defendants 2 and 3 herein, have absolute right, title and interest over the cart track mentioned above. The defendants have easmentary right to the cart track in existence without which they could not reach their property. Therefore, the defendants raised a counter claim in respect of the cart track measuring six cubic feet (15 links) width running West to East on the Southern side of the land in Survey No.119/2A2 and also paid the requisite court fee. Therefore, the defendants, in their written statement, prayed for dismissal of the suit interalia to grant a decree in their favour by way of counter claim in respect of the cart track running West to East on the southern side of the suit property.