MUNIRATHINAM; POOVAMMAL Vs. T CHINNAPPAN

JUDGEMENT

(1.) This second appeal arises out of the Judgment and Decree dated 27.03.19968 in A.S.No.3 of 1997 on the file of the learned Appellate Authority and Subordinate Judge, Krishnagiri confirming the Judgment and Decree dated 25.01.1996 in O.S.No.258 of 1987 on the file of the District Munsif Court, Krishnagiri.

(2.) The respondent as a plaintiff filed a suit for declaration that he has the right to use the suit passage, marked as A B C D in the rough plan to reach his house from Periathoppu road on the north and also permanent injunction stating that the respondent/plaintiff and the first appellant Munigundappa are the brothers and the second appellant is the son of the first appellant. The suit property is an ancestral property and the suit passage was in existence for more than 50 years as a way to wherever it leads from Periathoppur road. Immediately South of the said Periathoppur road is the house of the first defendant. His house is constructed facing east with front door passage facing the suit passage. Immediately next South of the defendants house is the plaintiff's house and he also constructed the house facing passage. The suit passage is a common piece of land belonging to both the family ancestrally. Hence, he sought for declaration and injunction. Resisting the same, the defendants filed a written statement stating that there is no pathway and the plaintiff is having alternative pathway and prays for dismissal of the suit.

(3.) The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1, P.W.2, D.W.1, Exs.A1 to A10, Exs.B1 to B3 and Exs.C1 to C4 and decreed the suit. Aggrieved against the judgment and decree of the trial court, the defendants preferred an appeal in A.S.No.3 of 1997 on the file of the learned Appellate Authority and Subordinate Judge, Krishnagiri.