The burden of proof lies with the plaintiff to establish the existence of the suit track in property disputes.

1. Plaintiff, who failed before both the courts below is the appellant in this second appeal.

2. plaintiff/appellant herein filed the above said suit for the relief of permanent injunction restraining defendants 1 to 3 from destroying or demolishing or interfering with the plaintiff's peaceful possession and enjoyment over the suit properties and mandatory injunction directing defendants 1 to 3 to restore the suit cart track cum pathway at points PQRS in the plaint plan to its original position within a day fixed by this court failing compliance, any officer of this court may be appointed to restore the same at the cost of defendants 1 to 3. The case of the plaintiff is as follows:-

The suit cart track cum pathway and the well were originally purchased by the grandfather of the plaintiff and defendants 4 and 5 under a sale deed dated 17.1.1910 from the maternal grandfather of the first defendant by name Kolnda Gounder. The suit cart track is shown as ABCD and DECF in red colour in the plaint plan. The well is shown in blue colour. The plaintiff and defendants 4 and 5 have their lands near and surrounding the suit cart track and the well. They have been using the suit cart track to access their lands and the well for irrigating their lands. The suit cart track is also mentioned in the FMP. Whileso, On 30.7.1997 defendants 1 to 3, alongwith rowdy elements destroyed a portion of DECF cart track which is shown as PQRS in the plaint plan and again on 31.7.1997, they attempted to destroy the entire cart track. Hence, the suit had been filed.

3. First defendant filed written statement, which was adopted by defendants 2 and 3, contending as under:-

The suit cart track absolutely belongs to defendants 1 to 3. On the south of the east west portion of the suit pathway one Muthsamy Gounder and his sons Subannan have lands and house. They have encroached the western portion of DEFC portion with their lands and put up a wall on the northern side annexing the suit pathway with their lands about 40 years ago. Having allowed such encroachment, the plaintiff is now claiming right over the cart track which exclusively belongs to defendants 1 to 3. Due to the misunderstanding between the plaintiff and defendants 1 to 3, the plaintiff made illegal encroachments of a major portion of the north south common pathway and when defendants 1 to 3 questioned the same, the suit has been filed making false claim. In any event, the suit filed for permanent injunction without seeking the relief of declaration is not maintainable and it is liable to be dismissed.

4. The Trial Judge framed three issues which are as follows:-

i) Whether the plaintiff is entitled to the relief of permanent injunction?

ii) Whether the plaintiff is entitled to the relief of mandatory injunction?

iii) To what other relief the plaintiff is entitled?

5. The plaintiff examined himself as PW1 apart from examining two more witnesses and marked 3 documents as Exs.A1 to A3. On the side of the defendants, the third defendant was examined as DW1 and one Viayakumar was examined as DW2 and 5 documents were marked as Exs.B1 to B5. The Field Map was marked as Ex.X1 and 5 documents were marked at the instance of the court as Exs.C1 to C5. On analysis of the oral and documentary evidence, the Trial Court dismissed the suit. On appeal, the appellate court concurred with the finding of the Trial Court. As against the concurrent finding of the courts below, the present second appeal has been filed.

6. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal:

A) Whether the findings of the courts below are justified in not taking into consideration of:

i) the clear recitals about the existence of the suit cart track in Ex.A1, A3 and B5.

ii) the admissions made in the written statement as well as in the evidence of DW1 and DW2.

iii) the clear findings given in the report and plan marked as Ex.C1 to Ex.C4 and th