Claim of ownership not proved.

This Second Appeal is preferred against the Decree and Judgment of the learned District Judge of Chingleput in A.S. No. 290 of 1953, reversing the Decree and Judgment of the learned District Munsif of Trivellore. in O.S. No. 117 of 1952.

The facts of this case can be easily followed if we take on hand the sketch annexed to this judgment for reference.

The case for the plaintiff is: The suit property marked as ABCD in the annexed sketch is owned in common by the plaintiff and the defendants. The said plot ABCD originally belonged to the plaintiff’s predecessors-in-title who owned the properties east of ABCD and to the defendants. The plot ABCD had been set apart as a passage by those persons for reaching their houses and sites to the east and south thereof and for taking their cattle, carts, etc. The plaintiff who has purchased the property east of ABCD claims to have become the owner of ABCD in common with the defendants and to be entitled to the right of taking his cattle, cart, etc., through the property. He also alleges that for 8 months prior to suit he has been so using the passage ABCD without obstruction or objection by anybody. The first defendant in the beginning of March, 1952, obstructed the plaintiff and his men from taking their carts and leading their cattle through the suit property. The plaintiff therefore asked for a declaration that the suit property ABCD belongs jointly to him and defendants and for a permanent injunction restraining the first defendant, his agents and men from obstructing the plaintiff’s men, his agents and servants in using the said property in common with the defendants and for costs of suit.

The case for the defendant is that the predecessors-in-title of the plaintiff were not co-owners with the defendants in respect of ABCD, and that the plaintiff’s predecessors-in-title had acquired no right of passage for men, cattle, bandies, etc. over ABCD.

The learned District Munsif unfortunately framed the issues as follows: —

(1) Is the plaintiff a co-owner with the defendants of the suit property?

(2) If so, what are his rights in the suit property?

If the learned District Munsif had merely omitted the words ‘if so’ in issue 2’ the controversy between the parties would have been brought into proper perspective before him and his decree would have been properly moulded.

The learned District Munsif came to the conclusion, and this has also been affirmed by the learned District Judge, that the plaintiff has not established that his predecessors-in-title were co-owners with the defendants of the suit property ABCD.

In regard to the predecessors-in-title of the plaintiff having acquired rights of passage for men, cattle and bandies, etc., the learned District Munsif found as a matter of fact that such rights of passage have been made out. He writes in paragraph 10 of his judgment:

“It is quite clear from a consideration of the evidence that ABCD as a matter of fact is being used for access not only for the defendants but for the properties east of the suit passage. The evidence is to the effect that Nagappa Naidu, the owner immediately to the north of the suit passage, has recently put up a structure there with an opening on ABCD. The fact that the passage is used as means of access by all the owners served by it cannot however confer any ownership in them to the suit passage and so the plaintiff’s case that he is entitled as a co-owner in the suit passage seems to be exaggerated. At the same time the attempt of the defendants to state that the suit passage is common only to themselves is also not borne out either by evidence or probabilities”.

Then the learned District Munsif discusses clearly the evidence in this case and writes:

“All these circumstances show that the defendants’ case that the suit passage is owned only by themselves and that others can use it only with their permission is not quite acceptable. It is quite clear from the evidence that the suit passage has been subjected to a right o