The main legal point established is that a plaintiff can seek permission to withdraw a suit with liberty to file a fresh suit if the original suit suffers from a formal defect.

JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree made in A.S.No. 56 of 2006 on the file of the Hon'ble Subordinate Judge at Ranipet, dated 23.04.2007, reversing the Judgment and decree dated 21.03.2005 in O.S.No. 214 on the file of the District Munsif Court, Ranipet.)

1. This is an unfortunate litigation which has come to this Court by way of Second Appeal filed by the plaintiff in O.S.No. 214 of 2004 which was before the District Munsiff Court at Vellore and which was decreed by Judgment dated 21.03.2005, necessitating the defendants in the suit to file A.S.No. 56 of 2006 before the Sub Court at Ranipet. The learned Sub Judge by Judgment dated 23.04.2007, reversed and interfered with the Judgment of the trial Court and set it aside, necessitating the filing of the present Second Appeal by the plaintiff in the suit.

2. The entire issue surrounds a pathway, which is to the east of the house of the plaintiff / appellant and to the south of the house of the defendants/respondents. Whether such pathway is exclusive to the appellant/plaintiff or whether it is to be in common use and also be enjoyed by the respondents/defendants, to access the main road further south, is the primary issue which was put to test before both the Courts below.

3. Unfortunately on the basis of the very same evidence presented differing findings on facts had been given. The appellant/plaintiff had urged that the pathway which runs south to north, ends at the junction point of the house of the appellant/plaintiff and that it cannot and could not and does not proceed further north to touch the boundaries of the house of the respondents/defendants by stating that there is an obstruction by way of thatched hut and a thorn fence / “TAMIL”

4. On the other hand, the contention of the respondents/defendants is that this particular path way which is in S.No. 145/5, is not the exclusive property of the appellant/plaintiff and that it is a common pathway and as a matter of fact, they assert that it is Government poromboke land and therefore, there cannot be a restraint in any specific from accessing it in manner known to law.

5. A further examination of the facts would reveal that the appellant had instituted Original Suit as aforesaid in O.S.No. 214 of 2004 seeking permanent injunction restraining the defendants therein, who are all brothers from interfering with their peaceful possession and enjoyment of the particular pathway which is situated in S.No. 145/5.

6. It is the contention of the learned counsel for the appellant that the house of the appellant and also the pathway and even to the east of the pathway, the houses, which are situated were also comprised in one whole block which originally belonged to the forefathers of the appellant and thereafter, by subdivisions, the lands had been subdivided among the cosharers / “TAMIL”and they had left out this particular pathway for access to the main road which is further south and runs east to west. It is therefore contended that the said pathway should not and cannot be used by the respondents/defendants.

7. It is also pointed out by the learned counsel for the appellant/plaintiff that the evidence on behalf of the respondents/defendants indicate that they had built their house only three years prior and therefore they cannot lay a claim long continuous use of the pathway.

8. It is however pointed out by the learned counsel for the respondents/defendants that though for all material purposes, the suit relates to a dispute about usage or otherwise of the particular pathway which had been mentioned above and which is in S.No. 145/5, a the reading of the schedule to the plaint would indicate that the property involved in litigation is actually the house of the plaintiff in S.No. 145/1 and that particular house has as its eastern boundary, the pathway and that the pathway was not stated in the schedule at all and even if the case of the plaintiff was to b