JUDGMENT :

The plaintiff is before this Court challenging the judgment and decree dated 8.10.2007 in A.S.No.43 of 2006 in and by the which the learned Principal Subordinate Judge, Gobichettipalayam had reversed the judgment and decree dated 28.9.2006 in O.S. No. 21 of 2001 passed by the learned District Munsif, Gobichettipalayam.

2. The parties are referred to in the same array as in the suit.

3. The plaintiff had filed O.S.No.21 of 2001 on the file of the learned District Munsif, Gobichettipalayam, seeking for a bare injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit pathway and subsequently the suit was amended to include the relief of mandatory injunction as the defendants had put up a fence, blocking the access of the plaintiff.

4. The case of the plaintiff was that under a sale deed dated 7.04.1974 he had purchased the suit schedule property along with right of way attached to the property. The defendants, who had property adjacent to the properties of the plaintiff, had started interfering with the plaintiff's right of way which was being enjoyed from time immemorial by himself and his predecessor in title. On 29.01.2001, the first and second defendants had joined together and were putting up a stone barbed-wire fence. Since his access would be cut off, if the said fence is put up, the plaintiff had objected and requested the defendants not to put up the same. However, the request was turned down and further the Panchayat talk also failed. Therefore, the plaintiff was left with no other alternative, except to approach the Court.

5. The second defendant had filed written statement inter alia denying the title of the plaintiff's vendors to the suit property. They had also denied the fact that the plaintiff and his predecessor in title have been using the east-west pathway for taking men, materials and vehicles to carry manure and harvested crops from their lands to the main road on the eastern side and that this right of way has been granted in the sale deed dated 7.4.1974, executed in favour of the plaintiff. The defendants would categorically state that there was no such pathway in existence and the plaintiff did not have the pathway right. They would further contend that the plaintiff has not given any detail about the pathway with its description in the suit schedule and has not even filed a plaint plan to identify the pathway.

6. He would submit that prior to the filing of the written statement, he had taken out an application for appointing an Advocate Commissioner and the Advocate Commissioner had visited the property and clearly stated that there was no cart track through the defendants' lands to reach plaintiff's land.

7. The Advocate Commissioner had submitted his reports dated 08.03.2001 and 08.06.2001. In the comprehensive report dated 08.06.2001, a plan was attached. At the southern end of the first defendant's property, there are two pathways running east-west till the eastern boundary of the second defendant's property. These pathways have been coloured blue in the Commissioner's plan, which has been marked as Ex.C.2. The Commissioner would note that these blue colour pathways were on a higher level than the lands situate to the north of the pathway, meaning thereby the property of the first and second defendants. The Commissioner has also noted a cart track running from the western end through the plaintiff's property, then through the properties of third parties and thereafter through the property of the second defendant and finally reaching the road. The cart-track has been coloured in green in Ex.C.2 plan dated 08.06.2001, which is filed subsequent to the objections raised by the plaintiff.

8. The defendants would contend that the plaintiff had alternative cart track running through his lands from the west. The allegation that the defendants had encroached and clandestinely put up the fence was stoutly denied. The defendants would therefore seek for the