Concurrent findings of fact regarding the existence of a common pathway based on revenue records and evidence of encroachment cannot be interfered with in a second appeal, especially when the plea of limitation is unsupported by evidence regarding the timeline of construction.

JUDGMENT :

P.B. Balaji, J.

The defendant in O.S.No.54 of 2010 on the file of the Principal District Munsif Court, Thoothukudi, is the appellant herein, aggrieved by the concurrent findings in the said suit and confirmed in A.S.No.40 of 2014 on the file of the Sub Court, Thoothukudi

2. The second appeal was admitted by this Court on 14.06.2023 on the following substantial questions of law:

(i) Whether the plaintiffs have discharged their initial burden of proving that there is a common pathway in the suit schedule proeprty?

(ii) Whether the Courts below have overlooked the sale deed of the year 1963 (Ex.B1) standing in the name of the defendant?

(iii) Whether the Courts below were right in granting the relief of mandatory injunction especially when the appellant had put up a construction six years prior to the filing of the suit?

(iv) Whether the suit filed by the plaintiffs is barred by limitation as per Section 113 of the Limitation Act, 1963?

3. I have heard Mr.M.P.Senthil, learned counsel for the appellant and Mr.S.Kadarkadi learned counsel for the respondents 1, 2 and 4 to 12.

4. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

5. For better appreciation and adjudication of the questions that arise for decision in the second appeal, more specifically, the substantial questions of law, the following facts are necessary:

The plaintiff filed a suit for declaration and mandatory injunction alleging that the suit pathway is a common pathway and the only access to reach the plaintiff's house. The plaintiff also alleged that the defendant has encroached into the said common pathway and put up constructions. The suit was therefore instituted for the relief of declaration and for mandatory injunction to remove the constructions over the common pathway.

6. The appellant / defendant resisted the suit contending that the suit is not a common pathway and the construction put up is within the entitlement of the defendant. The defendant also contended that he had constructed the building even six years back and hence, the relief of mandatory injunction was hopelessly time barred.

7. The trial Court as well as the first appellate Court accepted the case of the plaintiff and decreed the suit concurrently. As against the said concurrent findings, the present second appeal has been filed.

8. Mr.M.P.Senthil, learned counsel for the appellant / defendant would firstly state that the plaint is bereft of particulars and even the extent of the alleged common pathway has not been properly set out and in such circumstances, it is the submission that decree for mandatory injunction or even the relief of declaration could not have been granted. He would further contend that though the documents of title mentioned only 5 links to be available, the plaintiff has without any substantiation claim 10 links and the Courts below have not appreciated the defence raised by the appellant that the plaintiff had miserably failed to prove his entitlement in the common pathway as set out in the suit schedule.

9. Referring to Ex.B6 to Ex.B9, Mr.M.P.Senthil, would further state that the title deed of the plaintiff himself were exhibited on the side of the appellant, which clearly established the entitlement of the plaintiff was only 5 Links and not 10 Links He would further state that the Panchayat official was also examined as D.W.4 and he had clearly deposed that the pathway was not handed over by the plaintiff. As regards the Commissioner's report marked as Ex.C1 and Ex.C2, Mr.M.P.Senthil, woul