The plaintiff's right of way through a common passage, as established by a sale deed and supported by evidence, prevails despite elevation differences and the defendants' denial.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 25.01.2007 passed in A.S. No.54 of 2006, on the file of the Sub Court, Nilgiris, upholding the decree and judgment dated 28.04.2006 passed in O.S. No.431 of 2004, on the file of the District Munsif Court, Uthagamandalam.)

1. The defendants in O.S. No.431 of 2004, on the file of the District Munsif Court, Uthagamandalam are the appellants in the present appeal. The suit was filed by the respondent/plaintiff for a bare injunction restraining the present appellants/defendants from interfering with their peaceful possession and enjoyment of the suit property which is morefully described in the plaint schedule as a land in Old S.No.3816/2A and sub divided as R.S.No.3816/7 of Nilgiris District measuring 0.03 acres of land together with a common right of way shown in the plaint plan.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

3. The case of the respondent/plaintiff is that he purchased the suit property through a registered sale deed dated 24.04.1991 (Ex.A1) from one Rajammal and eight others along with the right over the common passage. According to him, he was in possession and enjoyment of the suit property along with the right of way through the common passage and the neighbouring owners were also using the said common passage. It is the contention of the plaintiff that the defendants/appellants, who had no exclusive right over the common passage, are interfering with plaintiff''s peaceful enjoyment over the same and hence, he filed the suit.

4. The suit was resisted by the defendants on the following grounds :

i. The defendants'' property is about 12 to 15 feet above the plaintiff''s property and the plaintiff, by putting up a stair case commencing from his property and ending with the property of the defendants, is claiming right over the alleged passage which exclusively belongs to the defendants.

ii. The plaintiff can approach his property through a different passage and he is attempting to make a shortcut from his terrace.

iii. The illegal attempt made by the plaintiff has been exposed during the inspection of the Advocate Commissioner appointed by the trial Court.

iv. The plaintiff also suppressed the existence of the other pathway to his property and therefore, the plaintiff cannot claim any right of way through a passage which exclusively belongs to the defendants.

v. Therefore, they prayed for dismissal of the suit.

5. On the basis of the above pleadings, the trial Court framed the following issues :

i. "Whether the suit as framed is maintainable?

ii. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?

iii. To what relief the plaintiff is entitled ?"

6. In the trial Court, the plaintiff examined himself and marked Ex.A1 to Ex.A6. The first defendant examined himself and marked Ex.B1 to Ex.B9. An Advocate Commissioner was appointed by the trial Court and his report and plan were marked as Ex.C1 & Ex.C2, respectively.

7. The learned trial Judge after analysing the oral and documentary evidence adduced on both sides decreed the suit filed by the plaintiff vide his decree and judgment dated 28.04.2006 on the following grounds:

i. The sale deed Ex.A1 executed in favour of the plaintiff clearly shows the right of the plaintiff over the common passage.

ii. The plaintiff has also adduced sufficient documentary evidence to show that he has been using the common passage for several years.

iii. The Advocate Commissioner in his report & plan (Ex.C1 and Ex.C2) had shown the existence of common pathway.

iv. The case of the plaintiff is not for an easementary right based on necessity but for easementary of righ