The courts upheld the right of the plaintiffs to use the cart track as mentioned in the schedule to the plaint, perfected by prescription and necessity.

JUDGMENT :

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 11.07.2003 made in A.S.No. 55 of 1999 on the file of the Sub Court, Sankari, confirming the Judgment and Decree dated 24.02.1999 made in O.S.No. 146 of 1993 on the file of the District Munsif Court, Sankari.)

1. The 4th to 8th defendants in O.S.No. 146 of 1993 on the file of the District Munsif Court, Sankari, are the appellants herein.

2. The suit O.S.No. 146 of 1993 had been filed by the first and second respondents/Nalla Gounder and his son A.N.Muthusamy against three defendants, seeking permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit Item No.1 of the properties as prescribed in the schedule to the plaint and for a permanent injunction restraining the defendants from destroying or preventing the plaintiffs from using the cart tract as described in Item No. 2 of the schedule to the plaint and for a mandatory injunction to restore the cart track in Item No. 2 of the schedule to the plaint.

3. During the course of trial, the third defendant died and his legal representatives had been brought on record as 4th to 8th defendants. They are the appellants herein.

4. It was the case of the plaintiffs that the property had been purchased by a registered sale deed dated 06.06.1966 and thereafter, the first plaintiff and his another co-sharer had subdivided the entire land of S.No. 280/8 into two equal shares. The plaintiff got the southern half portion of S.No. 280/8. That land was given as Item No.1. It was stated that to access the said lands, the first plaintiff had also been granted right to use a cart track which runs in the border of Item No. 2 property. This right was given even in the sale deed dated 06.06.1966. It was also stated that the defendants had interfered with the usage of such cart track which necessitated the plaintiffs to institute the suit. Further, the defendants had also obliterated to a short distance the cart track which further required the plaintiffs to also seek the relief of mandatory injunction to restore the cart track as it originally was and as a right granted under sale deed dated 06.06.1966. There had been talks of settlement of the issues. But they failed. In view of the reasons stated above, the suit was instituted for the reliefs stated above.

5. After the death of the third defendant, 4th to 8th defendants had been impleaded and the 6th defendant filed a written statement which was adopted by the other defendants. In their written statement, their holding of the lands in S.No. 278/5 and by the 3rd defendant of S.No. 280/10 was asserted. It was stated that the defendants had never called upon the plaintiffs to part with their lands as alleged. It was stated that the right granted under the sale deed dated 06.06.1966 was not valid. The defendants were not parties to the said document and therefore they claimed such grant of right was not binding on them. It was also stated that the vendors to the said document cannot grant rights over the alleged cart track. An Additional written statement was filed by the 7th defendant and it was stated that the cart track existing in Item No. 2 of the property was actually in Kaurveppampatty Village which is adjoining Item No.2 of the property.

6. A brief glance of the schedule given to the plaint would indicate that Item No.1 was in Morur Bit I Village, Sankaritalu, Salem District in S.No. 280/8 Punja hectare measuring 0.88.0. The area under contention was 1.09 acres. Item No.2 of the property was the cart track which runs along the borders in S.No. 278/9, S.No. 278/11, S.No. 278/5 and S.No. 278/10 and reaches the South-East corner of S.No. 280/8.

7. On the basis of the above pleadings, the District Munsif, Sankari, framed the following issues:-

“i) Whether there was a cart track as claimed by the plaintiffs?;

ii) Whether the defendants had obliterated the cart track as stated