This Second Appeal is filed against the Judgment and Decree, dated 10.07.1998 made in A.S.No.7 of 1997 on the file of the Principal District Judge, Krishnagiri, reversing the Judgment and Decree, dated 23.08.1996 made in O.S.No.42 of 1995 on the file of the District Munsif-cum-Judicial Magistrate, Uthangarai.

2. The plaintiff in O.S.No.42 of 1995 on the file of the District Munsif-cum-Judicial Magistrate, Uthangarai is the appellant herein. The plaintiff filed the suit to declare the assignment patta issued by first and second defendants in favour of third defendant as null and void and also for permanent injunction against the defendants from interfering with the peaceful enjoyment of the suit property by the plaintiff.

3. The parties herein will be referred to according to their rank in the suit.

4. The plaintiff acquired the property shown as ABCD in the plaint plan on 02.02.1990, constructed the building and has been in possession and enjoyment of the same. From the house, on the eastern side, there is 10 feet width pathway leading to Dharmapuri to Tirupattur main road. The above said pathway runs to the east, then to the north, then to the east. The above pathway is in the poramboke land. PQRS in the plaint plan is also part of the above said public pathway. There is no other access, except the above said pathway to the plaintiff's house. The plaintiff and his predecessor have been in enjoyment of the suit property for more than 35 years. D1 and D2 assigned the property in S.No.201/A1, including the suit property (PQRS in plaint plan) to D3. Therefore, the suit has been filed.

5. In the written statement filed by the second defendant and adopted by the first defendant, they contend that the suit property is not the pathway. It is true that the property assigned to D3, is a poramboke land. The said property has been in possession of the third defendant for several years and based on the possession, the suit property was assigned to D3. The plaintiff purchased the property shown as ABCD in the plaint plan only on 02.02.1990 and therefore, he has got no right over the suit property.

6. The third defendant in his written statement, contends that the property now assigned including the suit property was purchased by his grand father, Madhar Sahib on 11.05.1914 and since then he had been in possession of the property. When the third defendant was away from the village for his livelihood, one Abdul Kadar trespassed into the property. The third defendant came to the village in 1987, he got back possession through panchayatdars. The property was assigned to him on the basis of his possession. There is no pathway in the suit property as shown in the plaint plan. The plaintiff has got pathway on the southern side of his property and he has been using only the southern pathway. Therefore, the suit has to be dismissed.

7. The trial Court, after raising issues, took oral and documentary evidence. On the side of the plaintiff, three witnesses were examined and Ex.A.1 to Ex.A.28 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.8 were marked. The Commissioner's Report and plan were also marked as Ex.C.1 and Ex.C.2.

8. During the pendency of the suit, the plaintiff has not pressed the relief of declaration, as the assignment of the suit property to the third defendant was revoked and prosecuted only the other relief of permanent injunction.

9. The trial Court, after discussing the entire evidence, oral and documentary, came to the conclusion that the plaintiff has been in enjoyment of the suit property, i.e., PQRS in the plaint plan, as pathway and granted permanent injunction.

10. The third defendant preferred A.S.No.7 of 1997 on the file of the District Court, Dharmapuri @ Krishnagiri. The First appellate Court, re-appreciated the entire evidence, allowed the appeal, by dismissing the suit, on the ground that when declaratory relief is not pressed, permanent injunction cannot be granted and al