The main legal point established in the judgment is that the defendant did not have an absolute right over the common passage and his action in obstructing its use was unauthorized.

Impugning the judgment and decreed dated 30.10.2010 made in A.S.No.16 of 2010 on the file of the Sub Court, Ranipet, confirming the judgment and decree dated 14.10.2009 made in O.S.No.48 of 2008 on the file of the District Munsif Court, Ranipet, the defendant has preferred this second appeal.

2. The suit has been laid for permanent injunction and mandatory injunction.

3. The averments contained in the plaint are briefly stated as follows:

The “A” schedule property is the ancestral property of the plaintiff. The plaintiff's father Rangasamy died several years ago intestate leaving behind his three sons viz., Sivalingam, Kanniappan and the plaintiff, Dhanaraj. The plaintiff and his two brothers had been in joint possession and enjoyment of their ancestral properties and divided the same under the Koorchit dated 26.02.1990 and since the date of partition, the plaintiff is in possession and enjoyment of the “A” schedule property. The “B” schedule property is the common passage, which had been let out by the plaintiff and others for convenient enjoyment of their properties, which is running towards East to West and marked as ABCD in green colour in the rough sketch and the same is being used uninterruptedly by the plaintiff to have ingress and egress for the “A” schedule property and also, for taking out his cattle. The “B” schedule property had been used by the plaintiff's predecessors in title for having ingress and egress to the “A” schedule property from time immemorial. Other than the “B” schedule property, there is no way or access to take the cattle into the “A” schedule property. Hence, the “B” schedule property is being used as a common passage for the beneficial enjoyment of the “A” schedule property and while so, the defendant, without any authority, had unlawfully laid a foundation in the “B” schedule property deliberately, with a view to prevent enjoyment of the “B” schedule property by the plaintiff as a common passage. The defendant has no manner of right to prevent the plaintiff from enjoying the “B” schedule property as a common passage. Hence, the suit.

4. The averments contained in the written statement filed by the defendant are briefly stated as follows:

The suit is not maintainable either in law or on facts. The defendant is owning the properties on the eastern side of the plaintiff's property and Subramani & Menaga plots. The road is running from North to South and the defendant has got a right of way in between the plaintiff and Subramani's plot. The above said passage is also mentioned in the sale deed of the defendant and it is only the defendant, who has got right to enjoy the passage to his beneficial manner and the same absolutely belongs to the defendant and the plaint plan is incorrect.

5. The plaintiff never used the “B” schedule property nor any necessity for the plaintiff to use the same. The plaintiff has got way of entrance from the western side road running from North to South. The “B” schedule property passage is only for the benefit of the defendant alone and the plaintiff is estopped to claim any right over the same.

6. The sewage water of the defendant has to be let out to the main road only through the passage in dispute and accordingly, the defendant has laid sewage water pipe line for the same. The water tanker for filling up water to the defendant's property also passes through the passage and the defendant has got every right to use the same by erecting a water tank. Therefore, the plaintiff is not entitled to seek the relief sought for. Hence, the suit is liable to be dismissed.

7. In support of the plaintiff's case, PW1 has been examined and Exs.A1 and 2 were marked. On the side of the defendant, DW1 has been examined and no document was marked.

8. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial Court was pleased to decree the suit as prayed for. The first appeal preferred by the defendant also came to be dismissed. Hence, the pres