PARVATHARAM Vs. THIRUMALAI PRAKASAM
LAWS(MAD)-2008-9-95
HIGH COURT OF MADRAS
Decided on September 19,2008

PARVATHARAM Appellant
VERSUS
THIRUMALAI PRAKASAM Respondents

JUDGEMENT

- (1.)THIS appeal has been directed against the Judgment in A. S. No. 5 of 1994 on the file of the Court of Subordinate Judge, Udumalpet dated 17. 10. 1994 which had arisen out of a decree and Judgment in O. S. No. 303 of 1992 on the file of the Court of District Munsif, Pollachi. The plaintiffs, who lost their case before the Courts below have preferred this second appeal.
(2.)THE averments in the plaint in O. S. No. 303 of 1992 in brief relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaintiffs' property is an agricultural land to an extent of 10. 10. Acres comprised in S. F. No. 261/1 and 261/2 of Puravipalayam Village. The property originally belonged to one Ponkiya Gounder of Puravipalayam Village, who had executed a registered Will dated 28. 5. 1940 bequeathing in favour of one Sri Parvathammal, who had derived her title to the suit property after the death of the testator. The said Parvathammal had executed a registered Will bequeathing the properties in favour of her sons, daughters and grandsons on 22. 2. 1984. As per the said Will, the specific extent of the property bequeathed in favour of the respective parties are clearly referred to in the schedule of the property to the Will. The said Parvathammal died in the year 1986 and accordingly as per the terms of the Will, the plaintiffs became entitled to the suit property. The father of the plaintiffs also died and the guardian mother is looking after the plaintiffs' property on their behalf ever since the date of death of the testator Parvathammal. The plaint schedule property is a cart track situate in the middle portion of S. F. No. 261 whereas the other sharers were allotted with the western and eastern portion of the suit property. The defendant is the owner of the property comprised in S. F. No. 264 which is situate immediately on the north of S. F. No. 261/1. As per the Will, all the three parties, who are entitled to S. F. No. 261/1 and 261/2 are provided with a common east west cart track to have access to their respective lands. The existing east west cart track runs in the middle of the lands. As per the Will, it was directed to lay an east west cart track on the northern end of S. F. No. 261/1 instead of the existing cart track. Due to some inconvenience, the plaintiffs and the other sharers have not yet formed the new cart track and they are enjoying the existing cart track. From the said East west cart track, there is a north south cart track that runs from the eastern portion belonging to one Kannammal lands towards north in the defendant's land so as to reach the main east west road, that runs on the northern side of S. F. No. 264. The plaintiffs have shown the disputed cart track as "abc" in their rough plan. The plaintiffs and the other sharers who own land on the eastern and western side are also entitled to the said"abc" cart track. The "abc" Cart track is in existence for several decades and the plaintiffs and others are in enjoyment of the same without any interference or objection. As a matter of fact, there is no other way to reach the plaintiffs' land except the "abc" cart track. As such the suit disputed "abc" cart track is the required by the plaintiffs out of necessity. Though no specific mention is made in the documents regarding the disputed cart track, the same is in existence for decades and the plaintiffs are entitled to the cart track out of necessity. Recently, the defendant has leased out his property to the third parties and a fire accident took place in the plaintiffs sugarcane field and the tenants of the defendant were responsible for the same and on a compromise the plaintiffs were paid with compensation. From that onwards, the defendant has developed a hostile attitude towards the plaintiffs and started creating trouble at the instigation of the defendant, his tenants and his men are attempting to obliterate the cart track and to prevent the plaintiffs from using the same. Unless the defendant is restrained by means of a decree the plaintiff is put to much loss and hardship. Hence the suit for declaration that the plaintiffs are entitled to the suit "abc" cart track as shown in the plaint plan and for consequential injunction and for costs.
(3.)THE defendant in his written statement would contend that the defendant is the owner of the properties in S. F. No. 264 and the property is situated on the northern side of the plaintiffs' property. This defendant is having properties on the south of the east west main road. The allegation that as per the Will, all the three sharers are entitled to S. F. No. 261/1 and 261/2 is to be proved by the plaintiffs. The allegations that from the east west cart track in the plaintiffs' property, there is a north south cart track that runs from the eastern portion belonging to one Kannammal runs towards north in the defendant's lands so as to reach the main east west road that runs on the northern side of S. F. No. 264 is nothing but false and imaginary. The disputed cart track is "abc" in the plaint plan and the other sharers, who own lands eastern and western sides are also entitled to the said "abc" cart track which is in existence for several decades. The father of the plaintiffs by name late Chinna Raj was the own brother of one Duraisamy Gounder. The said Duraisamy Gounder got married with the sister of this defendant and as such the plaintiffs' father is a brother-in-law of this defendant. The lands of the plaintiffs and the said Duraisamy Gounder and his sister Kannammal are situated on the southern side of this defendant's landed property. During the time of fallow, the carts are being taken through the lands of this defendant to the plaintiffs and the above said persons lands from the east west road on the north side and the same was permitted by this defendant due to the close relationship of the plaintiffs. But when crops were irrigated , the said permission was denied by this defendant. But the plaintiffs and their co-sharers were taking their cart only through the pucca, well beaten cart track situate on the western side of the lands of the plaintiffs. The plaintiffs are having a pucca cart track on the western side of their lands. But the plaintiffs have suppressed the real facts with false plaint plan as if there is no other cart track for their lands which is totally false. The plaint plan does not reveal the actual location of the properties of the respective parties. The east west main road goes towards west and takes a diversion towards south and then goes to Kaliapuram Village on the southern side of the plaintiffs' land. The entire land of the plaintiffs abuts the north south Kaliapuram road throughout. The Commissioner's plan reveals the true nature of the position of the lands of the plaintiffs and the allegation that the suit cart track is required for the plaintiffs as of necessity is nothing but false and the suit is liable to be dismissed in limini. Further the allegation that the defendant had leased out his property to a tenant and a fire accident took place etc. , are all false. The plaintiffs and the defendant are close relatives. This defendant has attempted to raise crops in his lands during the month of April 1992. Hence he has closed the way which leads to the plaintiffs and his other co-sharers property on the southern side. The plaintiffs and their father's brother by name Duraisamy Gounder requested the defendant to permit them for another one week for which this defendant refused. Aggrieved at that, the plaintiffs have come forward as if there is a cart track in the lands of this defendant. The Commissioner's report would also reveal the actual fact. The plaintiffs have come forward with the false suit with imaginary rights. As such the plaintiffs have never enjoyed any cart track as of right and the said cart track is only a temporary arrangement on permission by the defendant. Hence the suit is liable to be dismissed in limini since there is no cart track in existence. The plaintiffs have no cause of action to file the suit. Hence the suit is liable to be dismissed.


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