K.RAMASAMY Vs. K.RAMASAMY

JUDGEMENT

(1.) The appellant herein is the defendant in the suit filed by the plaintiff in O.S.No.128 of 2002 on the file of the District Munsif-cum-Judicial Magistrate, Paramathi, for the relief of declaration, to declare that the defendant has no right of way through the land attached with the plaint and consequential permanent injunction. The trial Court rejected the claim of plaintiff and dismissed the suit and the Appellate Court reversed the finding and decreed the suit. Agreed over the Judgment of the Lower Appellate Court, this Second Appeal is filed.

(2.) For the sake of convenience, the parties are referred as per their ranking in the Trial Court.

(3.) The plaintiff's father, his grand father and another have entered into a Partition deed, dtd. 30/7/1965 whereby, the suit property and other properties situated in Sungakaram Patti Village, Paramathi Taluk, Namakkal District were allotted in favour of the plaintiff's father Karuppa Gounder. After his death, the first plaintiff has inherited the property and was in peaceful possession and enjoyment of the same. The Revenue Records were also mutated in favour of the plaintiff. On the North and East of the suit property, the lands in Survey No.113 and Survey No.111 respectively, were situated. East of the Survey No.111, there is a North South Main Road. The plaintiff having a land in Survey No.112/1 shown as P1 in the Rough Plan situated on the Southern side of Survey No.113. Further, Southern side of Survey No.112/1, the defendants lands in survey No.112/2 and 112/3 are situated. The plaintiff use the ittary pathway running over the lands in Survey No.111 and Survey No.113 to reach his land. The defendant is having separate way to reach his lands in Survey No.112/2 and Survey No.112/3 marked as D1 and D2 in the Rough plan. Without any right, the defendant is attempting to reach his land from the very same ittary pathway used by the plaintiff and also over the plaintiff's land. The defendant has no manner of right to use the plaintiff's land. The defendant's predecessor-in-title uses the corner of P1 land, if there was no standing crop and at no point of time, there is a pathway in P1 land. Suddenly, during last week of November 2002, the defendant trying to form a cart track, which is shown as X3, X4 in the rough plan to the width of 20 links by encroaching plaintiff-P1 land. Hence, he has come forward with the suit.