The document presented as evidence cannot be eschewed and must be given necessary credence. A separate relief of declaration need not be sought if the document gives certain rights and had been relied on by both parties.

JUDGMENT :

(Prayer : The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.91 of 2009 dated 22.07.2009 on the file of the I Additional Sub Court, Gobichettipalayam, reversing the judgment and decree made in O.S.No.296 of 2006 dated 01.11.2007 on the file of the District Munsif Court, Gopichettipalayam.)

1. The plaintiff in O.S.No.296 of 2006 on the file of the District Munsif Court, Gopichettipalayam, is the appellant herein.

2. O.S.No.296 of 2006 had been filed by the plaintiff, V.L.Venkatachalam against the 1st defendant, V.L.Muthusamy his own brother and another brother V.L.Chenniappan, seeking a judgment and decree of permanent injunction restraining the defendants from going northwards along the eastern border of the plaintiff's land and also for a permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession of usage of water available in the channel which runs through the 1st defendant's land and also for costs of the suit.

3. By judgment dated 01.11.2007, the suit was decreed by the learned District Munsif Gobichettipalayam. This indicated that the defendants were restrained from moving upwards towards north across the eastern boundary of the land of the plaintiff and the defendants were also restrained from preventing the plaintiff from using or taking water through the channel.

4. Questioning that judgment and decree, the defendants filed A.S.No.91 of 2008. The Appeal Suit came up for consideration before the Additional Sub Court at Gobichettipalayam and by judgment dated 22.07.2009, the decree with respect to taking water through the channel that the defendants should not prevent the plaintiff from taking water through the channel was confirmed. But however, the injunction restraining the defendants from going northwards along with the eastern border of the plaintiff's land was interfered with and that injunction was denied to the plaintiff. Even with respect to usage of the water channel a slight modification was made by the First Appellate Court stating that the cows and cattle should not be unnecessarily made to go across the water channel.

5. Questioning, the findings with respect to granting access to the defendants to move across the land of the plaintiff on the eastern side namely, the first relief in the plaint, the plaintiff had filed the present Second Appeal.

6. The Second Appeal had been admitted on the following substantial questions of law:-

“1). Whether the Lower Appellate Court is correct in Law in eschewing the report of the Advocate Commissioner?

2). Whether the Lower Appellate Court is correct in law in partly reversing the order of the Trial Court when this appellant / plaintiff has specifically proven the non-existence of the common pathway in the suit 'B' schedule which is suitably supported by the Advocate Commissioner's report?

3). Whether the Lower Appellate Court is correct in law in declaring that the respondent/defendant has right in the suit 'B' schedule especially when the respondent/defendant has never filed a suit for declaration?

4). Whether the judgment of the Lower Appellate Court is vitiated by its failure to apply correct principles of law and consider the entire evidence on record?”

7. Heard arguments advanced by Mr.A.Veerasamy, learned counsel for the appellant and Mr.J.Titus Enock, learned counsel for the respondents.

8. For the sake of convenience the parties would be referred as plaintiff and defendants. To reiterate the appellant in the Second Appeal was the plaintiff in the Trial Court and the respondents were the defendants.

9. A perusal of the background facts would reveal that the plaintiff and the defendants / brothers had entered into a partition deed on 21.07.1993 dividing the land which had come to their hands. Such partition deed was made before the panchayat and I must state with due appreciation to the learned counsels, both Mr.A.Veerasamy and Mr.J.Titus Enock had stated that their respecti