The vendor cannot retain any portion of the appurtenant pathway separately and alienate it to third parties.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 06.07.2018 passed in A.S.No.65 of 2015 on the file of the I Additional Sub Court, Nagercoil confirming the judgment and decree dated 29.10.2014 passed in O.S.No. 106 of 2012 on the file of the I Additional District Munsif Court, Nagercoil.)

1. The defendants are the appellants.

2. The plaintiffs filed O.S.No.106 of 2012 before the I Additional District Munsif Court, Nagercoil, Kanyakumari District for declaration that the plaint 'D' schedule property is part and parcel of plaint 'C' schedule 15 feet common pathway. The plaintiffs further prayed for a declaration that the sale deed dated 02.12.2011 executed by the second defendant through the third defendant in favour of the first defendant with regard to 'D' schedule property is invalid and void and will not bind the plaintiffs. The plaintiffs further prayed for permanent injunction restraining the defendants from interfering with the plaintiffs common right of pathway over the plaint 'C' schedule property by constructing any building or obstructing the 15 feet common pathway in 'C' schedule property including the 'D' schedule property. The suit was decreed by the trial Court. The defendants filed A.S.No.65 of 2015 before the I Additional Sub Court, Nagercoil. The learned Subordinate Judge was pleased to dismiss the appeal. As against the same, the defendants have filed the above second appeal.

3. The plaintiffs had contended that the parents of the first plaintiff purchased 'A' schedule property from the second defendant under Exhibit A2 on 06.11.2002. Thereafter, the parents of the first plaintiff have executed a registered settlement deed in favour of the first plaintiff with regard to 'A' schedule property under Exhibit A3 on 27.04.2010. Hence, the first plaintiff is the absolute owner of 'A' schedule property.

4. The plaintiffs had further contended that the second defendant has executed a registered sale deed jointly in the name of the plaintiffs 2 and 3 with regard to 'B' schedule property on 04.02.2004 under Exhibit A4. According to the plaintiffs, 'A' schedule is lying on the eastern side and 'B' schedule property is lying on the western side. In between 'A' and 'B' schedule properties, a 15 feet width common pathway is located which is used by the plaintiffs for ingress and egress to their respective properties. The said pathway is shown as 'C' schedule property.

5. The plaintiffs had further contended that the northern most portion of 'C' schedule property was alienated by the second defendant in favour of the first defendant under Exhibit A5 on 02.12.2011. Once the second defendant has sold away 'A' and 'B' schedule properties showing 'C' schedule property as a common pathway, the portion of the said common pathway cannot be alienated by the second defendant. After earmarking 'C' schedule property as a common pathway for 'A' and 'B' schedule properties, the second defendant cannot retain any portion after sale so as to confer a right on him to alienate a portion of 'C' schedule property.

6. The plaintiffs had further contended that the stair case of the residential house of the plaintiffs 2 and 3 is lying towards west, facing the 'D' schedule property. The alienation of 'D' schedule property in favour of the first defendant would specially obstruct the access of the plaintiffs 2 and 3 to the 'C' schedule pathway. Hence, the plaintiffs prayed for declaration that 'D' schedule property is part of 'C' schedule property. They had further prayed for declaration that the sale deed executed by the second defendant in favour of the first defendant is null and void and further prayer for injunction not to disturb the usage of 'C' schedule pathway by the plaintiffs.

7. The defendants filed a written statement contending that only up to a particular point in 'C' schedule property was surrendered to the Panchayat for public necessity and therefore, the plaintiffs are entitle