The intention of the parties in the partition deed and the clear and unambiguous terms regarding common rights over the property influenced the Court's decision in favor of the plaintiff.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, praying against the judgment and decree dated 17.11.2009 made in A.s.No.8 of 2009 on the file of the Sub-Court, Dharapuram confirming the judgment and decree dated 16.04.2008 made in O.S.No.14 of 2005 on the file of the District Munsif Court, Kangayam.)

(The case has been heard through video conference)

1. This appeal is directed against the concurrent finding of the Courts below allowing the suit for declaration and injunction in respect of cart track marked as “ABCD” in the sketch attached to the plaint.

2. The brief facts:

The suit schedule property is inherited by the plaintiff and the defendant through their father Chennimalai gounder. It is their ancestral property, which was inherited from Chennimalai gounder, who had two sons by name Sivanmalai gounder and Kuppanagounder. On 27.04.1976 Sivanmalai gounder (plaintiff) and Chinnanan @ Appachi gounder (defendant), who is the son of Kuppanagounder, entered into a partition. As per the partition deed, ‘A’ schedule property was allotted to Kuppanagounder the father of the defendant and ‘B’ schedule property was allotted to Sivanmalai gounder (plaintiff). The partition acted upon and the parties are exclusive possession and enjoyment of their respective shares along with common area mentioned in the partition deed. The cart track, which is the subject matter of the suit, is in ‘A’ schedule comprising S.No.587-C, which is the common cart track for enjoyment of both the sharers. The common well marked as ‘W1’ in the plaint sketch has to be used commonly by the plaintiff and the defendant. The specific understanding that out of 8 days, the plaintiff has to draw water for 3 ½ days, and the defendant has to draw water 4 ½ days. In the ‘B’ schedule property, the defendant has no right whatsoever. But, at the instigation of others, the defendant was trying to create a new cart track through ‘B’ schedule property. Hence, to declare the cart track in ‘A’ schedule property as a common cart track and injuct the defendant from restraining the plaintiff using the cart track shown as ‘ABCD’ and to declare the ‘B’ schedule property the exclusive property of the plaintiff and to restrain the defendant and others from interfering the peaceful possession and exclusive enjoyment of the plaintiff in respect of ‘B’ schedule property.

3. The suit was resisted by the defendant on the ground that the ‘ABCD’ pathway is not a common pathway. It absolutely belongs to the defendant. The well situated in S.No.587-C is also not a common well, but absolute property of the defendant over which, the plaintiff has no right. From East of S.No.587-C, there is a pathway running from North to South, which is used by the defendant to reach his land and take his cattle, cart and vehicles. The suit is against the terms of the partition deed between the sons of Chennimalai gounder. There is no pathway at ‘AB’ point. There is a ‘8’ feet pathway on the east side of the common well W1, there is a way leading to the land on the southern side. The pathway laying on the southern side of the well is exclusively enjoyed by the defendant.

4. The trial Court framed the following issues based on the pleadings:-

1. Whether with regard to the plaint ‘A’ schedule property plaintiff is entitled to the relief of declaration and consequential permanent injunction as prayed for?

2. Whether with regard to the plaint ‘B’ schedule property plaintiff is entitled to the relief of declaration and consequential permanent injunction as prayed for?

3. Whether the contention of the defendant that the plaintiff is estopped by deed and conduct in seeking the relief as prayed by him in this suit is true?

4. To what other relief if any the plaintiff is entitled for?

5. The plaintiff examined PW-1 and PW-2 and marked three exhibits. The defendant examined DW-1 and DW-2 and marked four exhibits. The Advocate Commissioner Report and Sketch were marked as Exs.C1 and C2.

6. The tr