Allegation of not coming to court within clean hands not proved.

1. This revision is filed under Article 227 of the Constitution of India by second defendant in O.S.No. 239 of 1998 on the file of the District Munsif Court at Musiri.

2. O.S.No. 239 of 1998 was filed by respondents 1 and 2 in this case for injunction, restraining the defendant in the suit from interfering with the right of the plaintiffs in making use of B schedule pathway. Even though injunction was claimed against two defendants, as against the first defendant, injunction was not granted on the ground that the first defendant was living abroad and he has not given rise to any dispute or cause of action for the grant of injunction. But, as against the petitioner, an ad-interim injunction was granted and subsequently after hearing both parties ad.interim injunction was confirmed and an order of injunction was granted till of the suit.

3. The plaintiffs claim title and possession over the A schedule property on the basis of Settlement Deed executed by one Kesavamurthi who is none other than the husband of the first plaintiff and the father of the second plaintiff. Kesavamurthi has obtained right over the items covered in the settlement deed by virtue of the partition deed of the year 1984 and also on the basis of a sale deed obtained from a third party. All the properties belonging to Kesavamurthi have been gifted to plaintiffs.

4. B schedule property is a cart track, which according to the plaintiff, is earmarked for the common use of all the sharers in the partition deed, 1984. No person is entitled to interfere with the right of enjoyment and use of the pathway. It is alleged in the plaint that the defendants are interfering and obliterating the pathway and annexing the portion with that property, the same was sought to be prevented by filing this suit. The suit was filed on 27. 98. On the very same date they also moved for injunction and the same was granted in I.A.No.427 of 1998.

5. In the counter statement filed by the petitioner, opposing the grant of injunction, it was said that the plaintiffs have suppressed material facts. The reason for taking such a contention is that an earlier suit, O.S.No.223 of 1998 was filed by the mother- in- law of the first plaintiffs, and injunction was also sought for in respect of the very same B schedule property. Though ad-interim injunction was granted in that case, after hearing the petitioner, the ad-interim injunction was vacated on 27. 1998, and it was on the very same date, the present suit was filed through the same counsel. It is said that neither in the plaint nor in the injunction application, there is any statement about the earlier litigation and therefore the application should not have been entertained. The contention is that both suit as well as the injunction application is without any bona fides and the plaintiffs have not come to the Court with clean hands. It is also contended that even on merits, the plaintiffs are not entitled to any relief.

.6. After the objection was filed, the lower Court appointed the Commissioner, who also filed the report. Subsequently, the plaintiffs filed various documents which included certified copies of the Commissioners report and plan prepared in O.S.No.223 of 1998 in the suit filed by the mother- in -law. The petitioner also filed documents in support of his objections.

7. The lower Court, thereafter, heard the injunction application on merits. The ad-interim order was confirmed. It came to the conclusion that in the B schedule property, there is a cart track, which is necessary for a convenient enjoyment of A schedule property. B schedule property is in and there is a pathway. It also came to the conclusion that when the pathway is shown on the date of suit, it is only proper that both the parties should maintain status quo i.e., the pathway should not be obliterated or in any way changed. It also came to the conclusion that the pathway is a common pathway not only to the petitioner and the plaintiffs, It also g