IMPORTANT POINT
The court upheld the principle that long user and agreements can establish common property rights, even in the absence of formal title declarations.

JUDGMENT :

(S. Sounthar, J.) :

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.38 of 1997, dated 19.9.2001, on the file of Subordinate Judge, Ambasamudram confirming the judgment and decree made in O.S.No.568 of 1988, dated 28.7.1997, on the file of Additional District Munsif of Ambasamudram.)

The Second Appeal is directed against the judgment and decree made in A.S.No.38 of 1997, dated 19.9.2001, on the file of Subordinate Judge, Ambasamudram confirming the judgment and decree made in O.S.No.568 of 1988, dated 28.7.1997, on the file of Additional District Munsif of Ambasamudram.

2. The defendants in the suit are the appellants. The suit was filed for declaration of plaintiffs right over the suit second schedule lane portions and for consequential injujnction restraining the defendants from interferring with the plaintiffs right of user. The suit was decreed by the trial Court by granting declaration that the suit second schedule was a common pathway and consequential injunction. Aggrieved by the same, defendants preferred an appeal and the first appellate Court affirmed the findings of the trial Court. Hence, the defendants have come by way of this Second Appeal.

3. According to the respondents/Plaintiffs, they purchased the property on the north and the south of the suit second item pathway. It was asserted by the plaintiffs that they had been using the suit first item north-south pathway and second item east-west pathway for more than 100 years and had prescribed right over the same. It was also claimed that the plaintiffs had no other alternate pathway to reach the house situated on the north of the suit item No.2, except the suit pathways. It was also claimed that there was an agreement between the plaintiffs father Sankaranarayana Konar and defendants father Krishna Konar on 13.12.1957, whereunder, the right of the plaintiffs to use the suit pathways had been acknowledged. It was also claimed that the defendants were also entitled to drain their rain water from the roof into the second item lane of the second schedule. Thus claiming right over the suit pathways by way of long user and by necessity, the plaintiffs are constrained to file a suit for declaration and for consequential injunction.

4. The suit was resisted by the defendants by denying the right of the plaintiffs over the suit pathways. It was claimed by the defendants that the suit pathways were their exclusive lane portion and plaintiffs had no right over the same. The averments in the plaint as if the plaintiffs had been using the suit pathways for more than 100 years was specifically denied in the written statement. It was also claimed in the written statement that the plaintiffs had got an alternative pathway on the eastern side through the property of one Paramasiva Konar. On these pleadings, the defendants sought for dismissal of the suit.

5. Before the trial Court, the first plaintiff was examined as P.W.1 and one Chelliah was examined as P.W.2. On behalf of the plaintiffs, 11 documents were marked as Ex.A1 to Ex.A11. The defendant was examined as D.W.1 and no documents were marked on the side of the defendant. The Advocate Commissioner’s report and plan were marked as Ex.C1 and Ex.C2.

6. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the disputed suit pathways were common pathways and granted the relief of declaration and injunction as such. Aggrieved by the same, the defendants preferred an appeal in A.S.No.38 of 1997, on the file of Sub-Court, Ambasamudram. The First Appellate Court affirmed the findings of the trial Court. Aggrieved by the concurrent findings of the Courts below, the defendants are before this Court by way of this Second Appeal.

7. At the time of admission, this Court formulated the following substantial questions of law by order, dated 16.8.2002:

1. Whether a suit for declaration of title over the suit p