KARUPPUSAMI GOUNDER Vs. PALANISWAMI GOUNDER

JUDGEMENT

(1.) The defendant, who had succeeded in the trial Court, but lost before the lower appellate Court, is the appellant. The respondent -plaintiff filed a suit for permanent injunction restraining the defendant from interfering with his right to use the suit pathway lying in S. No. 880 in Nilai Village in Dharapuram taluk for reaching the adjoining S. No. 867 of the same village. It is common ground that S. No. 880 belonged originally to the joint family of the defendant and his two brothers Periaswami and Rakkianna. In the partition effected between the three brothers under Exhibit A -2, dated 26th September, 1970, they left a common pathway in S. No. 880. At that time, the plaintiff was the owner of S. No. 867 which adjoins the pathway kept in common by the three brothers who got S. No. 680 divided leaving a common pathway for reaching their respective shares. Subsequently, the plaintiff purchased Periaswami's share in S. No. 880 with the pathway right from Periaswami's son Velusami under Exhibit A -1 dated 12th June, 1970 and he was enjoying the right. The plaintiff claimed the right to enjoy the pathway right to reach S. No. 867. This was objected to by the defendant. It is under these circumstances, the plaintiff filed the suit far a permanent injunction restraining the defendant from interfering with his right to use the pathway for reaching S. No. 867.

(2.) The defence was that the plaintiff was entitled to use the pathway only for reaching his share in S. No. 880 and he is not entitled to use the pathway for reaching some other land bearing S. No. 867 and the plaintiff is, therefore, not entitled to the permanent injunction.

(3.) The trial Court found that the plaintiff is not entitled to use the pathway kept in common in S. No. 880 by the three brothers who are parties to the partition deed, Exhibit A -2 for reaching some other land, namely, S. No. 867 and it dismissed the suit with costs. But on appeal, the learned Additional Subordinate Judge held, following the decision of Palaniswamy, J. in Subbiah Goundan v/s. Ramaswawy Goundan : AIR 1973 Mad 42, that the plaintiff it entitled to use the common pathway for reaching S. No. 867 and he, accordingly allowed the appeal with costs and decreed the suit as prayed for with costs.