Point of Law: Denial of easementary rights - plaintiffs having failed to seek the relief of declaration of their alleged easementary right, on that score, the plaintiffs suit has to fail.

JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of CPC, 1908 against the judgment and decree dated 04.09.2007 passed in A.S. No.49 of 2007 on the file of the First Additional Subordinate Judge, Coimbatore, confirming the decree and the judgment dated 10.04.2006 passed in O.S. No.1238 of 2003 on the file of the First Additional District Munsif, Coimbatore.)

1. Challenge in this second appeal is made to the judgment and decree 04.09.2007 passed in A.S. No.49 of 2007 on the file of the First Additional Subordinate court, Coimbatore, confirming the judgment and decree and dated 10.04.2006 passed in O.S. No.1238 of 2003 on the file of the First Additional 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 defendants in O.S.No.1238 of 2003 are the appellants in the second appeal.

4. Suit for permanent injunction.

5. Briefly stated, the case of the plaintiffs is that, the first plaintiff and one Kandaswamy, husband of the second defendant and father of the defendants 1 and 3 were brothers, both being the sons of late Arunachala Gounder, and the second plaintiff is the wife of the first plaintiff and put forth that there was a partition of ancestral properties during the life time of Arunachala Gounder and in the abovesaid partition deed dated 01.02.1969, the first plaintiff and his brother Kandaswamy were allotted their shares jointly described in the 'B' schedule of the partition deed and the first plaintiff and his brother Kandaswamy, for the purpose of convenient enjoyment, divided the properties between themselves and the division was recorded in the Panchayat muchalika dated 27.05.1982 by which Kanthasamy took 5.56.acres on the west while the first plaintiff took 5.16 acres on the east and the first plaintiff was given the right of cart track across the land of Kanthasamy and only for that purpose Kandasamy was given excess of 40 cents over and above the share of the first plaintiff and accordingly the respective parties had been in the possession and enjoyment of their shares and Kandaswamy had been allowing the cart track to be used by the first plaintiff for ingress and egress and the cart track runs from North South Vari Poramboke starting at the North East Portion of Kandaswamy's share to the entire East West length and enters the share of the first plaintiff and the plaint sketch would depict the existence of the cart track and Kandaswamy had not been heard of since 1991 and is presumed to be dead and the defendants who are his legal heirs have started to act on their own and by way of an Assurance Deed, the defendants have specifically admitted the existence of the cart track over which the plaintiffs having access to their lands and while so, during November 2002, the first defendant prevented the plaintiffs and their men from entering their lands by using the cart track and hence, a legal notice was given and after the receipt of the notice, the defendants kept quite for some time and subsequently again attempted to interfere with the possession and enjoyment of the cart track and the contention of the defendants that inasmuch as the plaintiffs have sold their lands to the third parties, they are not entitled to the suit cart track is false. The plaintiffs have not sold their entire lands and had retained an extent of 16 cents for the purpose of constructing a form house. The cart track is the only access to their lands and as the defendants interfered with their possession and enjoyment, according to the plaintiffs, they have been necessitated to lay the suit against the defendants for appropriate relief.

6. The defendants resisted the plaintiffs' suit contending that the suit laid by plaintiffs is false and not maintainable in law and put forth the case that the allotment of 'B' schedule properties jointly in favour of the first plaintiff and his brother Kandaswamy vide partition deed dated 01.02.1969 is true and dispute