RASI GOUNDER Vs. K NATESAN

JUDGEMENT

(1.) The defendants in the Trial Court are the appellants in the Second Appeal. The plaintiffs filed the suit for declaration and injunction in respect of their right to use the suit cart-track for their men,cart and cattle to ingress and egress from their land in Survey No.194/1 and also for a permanent injunction from obliterating or disturbing or interfering with user and enjoyment of the suit cart-track. The suit cart-track is mentioned as A,b,c,d,e,f,g,h,i commencing from Sangari to Trichengode road East to West running on the Northern edge of Survey No.188/2 belonging to the defendants on the point ABC and thereafter running to the point CDE towards West and passing through the other lands of the defendants on the point EFG from North to South towards the Western side and thereafter passing through Survey No.188/1 in the point GH and to reach Survey No.194/1 wherein the plaintiff's house stated to have been situated at the point of I.

(2.) Admittedly, the defendants are the joint owners of the land in Survey No.188/2 Sangari Village and Survey No.194/2b and 194/2a. As it is seen in the plaint the claim in respect of these cart-track are made on three grounds, namely,

(3.) On the other hand, it was the case of the defendants in the suit that the property comprised in Survey No.188/2 which is otherwise called Poocha Goundan Kadu belong to them and the cart-track is their private cart-track and it does not lead to the plaintiff's land. The Trial Court has dismissed the suit on various grounds, namely, the documents of title relied upon by the plaintiffs which are of the year 1939 to 1972 marked as Exs. A1 to A5 do not refer to the cart-track apart from the finding that the plaintiffs have not proved the right by prescription by way of grants. That apart the Trial Court has also found against the plaintiff that on the death of the first plaintiff even though the second and third plaintiffs who are the sons, are on record the daughter was not impleaded as a party and therefore, on the basis of non joinder of necessary parties also the suit was dismissed. On appeal filed by the plaintiffs, the First Appellate Court has decreed the suit by reversing the judgement of the Trial Court relying upon the admission in the written statement of the defendants that such cart-track was in existence across the Survey Nos.182/2 and 183/3 to reach the plaintiffs' property from Sangari Trichengodu main road. It is as against the judgement of the First Appellate Court the defendants have filed the present Second Appeal.