JUDGMENT :

Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 29.06.2000, in A.S.No.149 of 1995 on the file of the Court of I Additional District Judge cum Chief Judicial Magistrate, Coimbatore confirming the decree and judgment dated 28.04.1995 in O.S.No.2118 of 1984 on the file of the District Munsif Court, Coimbatore.

1. This second appeal is directed as against the judgment and decree dated 29.06.2000, in A.S.No.149 of 1995 on the file of the Court of I Additional District Judge cum Chief Judicial Magistrate, Coimbatore confirming the decree and judgment dated 28.04.1995 in O.S.No.2118 of 1984 on the file of the District Munsif Court, Coimbatore.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

3. The case of the plaintiff in brief is as follows :-

3.1. The suit is filed for recovery of possession and mandatory injunction or alternatively mandatory injunction and permanent injunction. Originally, the property comprised in SF.No.521 admeasuring 4.46 acres situated at Bilichi Village belonged to one, Gopalakrishnama Naidu, who is the father of the plaintiff herein. On the south of the said property, admeasuring 1.89 acres was allotted to his sister’s son, Venkiduswamy, who is the father of the third defendant herein. The remaining extent admeasuring 2.57 acres was inherited by the plaintiff after demise of his father, namely Gopalakrishnama Naidu. It is situated one kilometer west on the Mettupalayam Road and the plaintiff has access to his land through cart track of 12 feet breadth, which runs from the main road towards west and takes a turn towards north and reaches the property comprised in S.F.No.521/2 at its eastern extremity. The total area covered by the cart track in his land is 22 cents. While being so, on 12.02.1954, the plaintiff had sold out to an extent of 2.07 acres in SF.No.521 to one, Vadivambal inclusive of half extent of cart track admeasuring 11 cents. In turn, the said Vadivambal sold the said property to one, Bujjammal, who is the mother of the defendants 1 and 2 herein.

3.2 In the year 1977, the SF.No.521 was divided into five sub divisions and SF.No.521/3 admeasuring 40 cents belongs to the plaintiff and the cart track measuring 22 cents was given in the SF.No.521/2, which is common property to both the plaintiff and the defendants 1 and 2. The total extent belongs to defendants 1 and 2 as per sub division admeasuring 2.06 acres in SF.No.521/1, 521/4 and 521/2. While being so, the first defendant encroached upon the cart track in SF.No.521/2 and also reduced the breadth of the cart track to the width of 5 feet and it is also diminishing everyday. In fact, the first defendant also put up small shed and encroached the land belonging to the plaintiff. Hence, the suit.

4. The defendants resisted the plaintiff’s case by filing written statement stating that the southern half portion admeasuring 2.23 acres in the total extent comprised in SF.No.521 admeasuring 4.46 acres belongs to the plaintiff. He sold out the same to the third defendant and his brother in the year 1941. Thereafter it was sub divided, in which the extent of 2.23 acres was allotted to the third defendant. Further, after selling away 2.07 acres to the mother of the defendants 1 and 2, the plaintiff is only entitled to an extent of 16 cents in SF.No.521. They did not have any knowledge about the sub division and they have no notice about the sub division and it is not binding on them. After the sale in favour of the said Vadivambal, only the right to take his cart is retained. Therefore, the plaintiff cannot claim ownership about the entire cart track. In fact, the width of the cart track is only 7 to 8 feet and not 12 feet. Hence, the plaintiff is not entitled to seek any relief as prayed for and sought for dismissal of the suit.

5. In support of the plaintiff’s case, P.W.1 was examined and nine documents were marked as Ex.A.1 to Ex.