Any order passed without issuance of notice regarding survey, will not bind the party on whom no notice was served.

(This second appeal has been filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 6.3.1995 made in A.S.No.136 of 1994 on the file of the Additional District Court, Erode, reversing that of the Trial Court dated 22.11.1993 in O.S.No.764 of 1987 on the file of the I Additional District Munsif Court, Erode.)

The appellant herein is the Plaintiff in O.S.No.764 of 1987 on the file of the I Additional District Munsif Court, Erode, who challenges the judgment and decree of the learned Additional District Judge, Erode, in A.S.No.136 of 1994 dated 6.3.1995 reversing that of the Trial Court in O.S.No.764 of 1987 dated 22.11.1993. Respondents 1 to 5 herein are defendants 1, 3, 6, 4 and 5 respectively in the original suit. Respondents 4 and 5/defendants 4 and 5 are given up as they were set exparte in the first appellate Court.

2. The plaintiff filed the suit for declaration and for permanent injunction. The brief facts as could be seen from the plaint and written statement are as follows.

(a) The cart track in old survey No.940/3 and re-survey No.1074 is the suit property. The plaintiff purchased 84½ cents of land in old survey No.940/3 and re-survey No.1074/2 along with the right of using the said cart track and since then he is using the cart track. Plaintiff had no other cart-track to approach his property. By sale deed dated 28.4.1984, defendants 1 to 3 purchased the property lying north to plaintiff's property to which the suit cart-track is shown as western boundary. In further north, lies the property of the 5th defendant. It is alleged that as the defendants 1 to 3 were not in good terms with the plaintiff, they were attempting to cut and encroach the cart-track. It is specifically alleged that on 12.7.1987, the defendants 1 to 3 prevented the plaintiff from using the cart-track. As the defendants have no manner of right to do so, the plaintiff filed the suit for declaration and for consequential permanent injunction. As the defendants 4 and 5 have also right over the cart-track, they were impleaded as necessary parties to the suit.

(b) In the written statement filed by the defendants 1 to 3, adopted by defendants 4 and 6, it is contended that as per the Tamil Nadu Land Survey and Boundaries Act, the suit is not maintainable; that in the year 1980, the suit property was re-surveyed and the same was published in the Government Gazettee dated 28.8.1980, in which the suit cart-track did not find a place; and that during re-survey, the plaintiff had not made any objection regarding the suit cart-track and hence the suit should have been laid only against the Land Survey Department. It is also contended that the suit cart-track ends with the southern side of defendants's property; that during 1956 when the Lower Bhavani Project was introduced, the suit property was affected and the itteri (narrow path between two fields) was also used along with the suit cart-track for taking the carts; and that the predecessors of the defendants gave 20 cents of lands to the predecessors of the plaintiff in lieu of the suit cart-track and hence the plaintiff had no right over the suit cart-track. It is further contended that the brother of the defendants is the vendor of the plaintiff, at whose instance the suit is filed with ulterior motive. The defendants categorically stated that they alone are entitled to the suit cart-track and denied the allegation that they attempted to prevent the plaintiff from using the suit cart-track. It is also submitted that the defendants 4 and 5 have no right over the suit property and they are unnecessary parties to the suit.

3. On the above pleadings the trial Court framed five issues and one additional issue. On behalf of the plaintiff Pws.1 and 2 were examined and Exs.A- to A-4 were marked. On behalf of the defendants the first defendant was examined as DW-1 through whom, Exs.B-1 to B-10 were marked. Apart from these, the Commissioner's report and plan were marked as