Pure question of law can be agitated even if not specifically pleaded.

S.A.No.134 of 1984 is preferred by the plaintiff in O.S.No.535 of 1977. S.A.No.1565 of 1987 is preferred by the defendants in O.S.No.1395 of 1980.

2. The plaintiff in O.S.No.535 of 1977 is also the plaintiff in O.S.No.1395 of 1980. She is the respondent in S.A.No.1565 of 1987, while she is the appellant in S.A.No.134 of 1984. Sundari Bai, Raghanatha Singh, Ganesan and Krishnadas are the defendants in O.S.No.1395 of 1980. They are the appellants in S.A.No.1565 of 1987. Sundari Bai, Janardan Singh, Subbu Singh and Krishnadas are the defendants in O.S.No.535 of 1977 and the respondents in S.A.No.134 of 1984. The properties comprised in O.S.No.535 of 1977 bear Door Nos.19 to 23/109, T.S.No.7/2405, Sukrawarpettai, Coimbatore. The properties comprised in O.S.No.1395 of 1980 are door Nos.19 to 23 corresponding to old No.30/131 and T.S.No.7/2405. Thus, the parties and properties are the same. Therefore, I propose to dispose of these two cases by a common judgment.

3. The suit in O.S.No.1395 of 1980 was filed by the plaintiff Chenchulakshmi against four defendants viz., Sundari Bai, Raghunath Singh, Ganesan and Krishnadas for injunction restraining the defendants from constructing any stair case in the portion shown as “EBGH” in the plaint plan and also prevent the people residing to the south of it from going through the steps ‘EBGH’ to Sukrawarpet Street.

4. The plaintiffs case there was, as follows:

The properties shown in Red, Green, Blue and Yellow coloured in the plaint plan viz., ‘ABCD’, originally belonged to Hira Bai, mother of the 1st defendant. The property is just to the north of Sukrawarpet Street. There is a passage from Sukrawarpet Street running towards south which is shown in ‘EBCF’ in the plaint plan. The said path is 4’ east west on the southern side and 5 1 2’ eastwest on the northern side. Heera Bai had three sons by name Lokanath Singh, Janarthan Singh and Subbu Singh, and a daughter by name Sundari Bai, the 1st defendant. On her death, as per her will the properties were divided amongst her heirs on 12. 1955. The red washed portion shown in the plaint plan was obtained by the 1st defendant in the said partition. The other brothers obtained the blue and red washed portions. The 2nd defendant is the husband of the 1st defendant. Defendants 3 and 4 are their children. On 211. 1960, Lokanath Singh died without any issue. The two brothers and the 1st defendant obtained 1/3rd share in the property left behind by Lokanath Singh. Janarthan Singh and Subbu Singh, the brothers of the 1st defendant filed a suit and claimed 8/9th share, admitting that the 1st defendant was entitled to 1/9th share. A suit was filed in O.S.No.125 of 1970 and in that suit, the tenants and the mortgages alone were impleaded as parties. There was a preliminary decree for partition. Later, a final decree was passed. According to the final decree, the plaintiffs were granted 8/9th share and 1/9th share was allotted to the 1st defendant. To reach the share allotted to the plaintiffs from Sukrawarpet, there was a passage shown as ‘EBGH’. The said property was purchased by the father of the plaintiff. It was obtained by the father of the plaintiff from the plaintiffs in O.S.No.125 of 1970 viz., Janarthan Singh and Subbu Singh and the plaintiff is in possession of the property accordingly. When the proceedings in O.S.No.125 of 1970 was pending, the 3rd and 4th defendant at the instigation of the 1st defendant filed a suit in Sub Court, in O.S.No.373 of 1972, claiming 1/3rd share. The vendors of the plaintiff viz., Janarthan Singh and Subbu Singh were parties there. The suit was decrees on 3. 1973 ex parte. In pursuance of the same, no final decree has been passed. The said suit is pending whatever it is, the plaintiff is entitled to a right of pathway to reach her portion from Sukrawarpet Street. Whileso, the 1st defendant has obstructed the passage by putting up a concrete stair case on the common passage. She has no right to do so. The o