Injunction suits require declaration where title disputed; long continuous user of pathway protectable by status quo injunction without title or easement declaration, to preserve peace and prevent litigation.

JUDGMENT :

K.Murali Shankar, J.

These Second Appeals are directed against the common judgment passed in A.S.No.40 of 2014 and Cross Appeal in A.S.No.82 of 2014, dated 01.09.2017, on the file of the Subordinate Court, Sivagangai, confirming the judgment and decree passed in O.S.No.149 of 2011 and the counter claim filed therein dated 05.02.2014, on the file of the Court of the District Munsif, Sivagangai.

2. The appellants in S.A.(MD)No.196 of 2018 are the defendants.

Originally, the sole appellant in S.A.(MD)No.208 of 2018 is the plaintiff and pending Second Appeal, the appellant/plaintiff died and her legal representatives came on record as the appellants 2 to 5. The plaintiff filed a suit in O.S.No.149 of 2011 before the District Munsif, Sivagangai claiming permanent injunction restraining the defendants and their men from any manner interfering with the plaintiff’s peaceful possession and enjoyment of the suit property and for mandatory injunction for removal of encroachments made by the defendants in the suit property.

3. The defendants have filed counter claim claiming declaration that a portion of the suit property is a common lane and for permanent injunction restraining the plaintiff from in any way interfering with the defendants' peaceful possession and enjoyment of the suit common lane.

4. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in their original suit.

5. The case of the plaintiff in brief is as follows:

(a) The suit property originally belonged to the plaintiff’s father, one Karuppaiya Konar, by virtue of a sale deed dated 21.01.1935. In the said property, the plaintiff’s father had constructed a tiled house, resided therein and obtained patta during the settlement period. He had also purchased another property situated on the west of the suit property under a sale deed dated 14.10.1942. The said Karuppaiya Konar died on 06.05.1975. After his demise, in an oral partition said to have taken place between the plaintiff and her sister in the year 1985, the suit property was allotted to the share of the plaintiff, whereas the property purchased under the sale deed dated 14.10.1942 was allotted to the share of her sister, namely, Sri Rengammal. Thereafter, the plaintiff demolished the tiled house and put up a concrete building consisting of two floors and has been in possession and enjoyment of the same with the entrance facing east. The plaintiff has also been using the vacant portion lying on the extreme eastern side of the property for the purpose of access to her house and the backyard portion situated further south of her house. It is her further case that she had erected a Peedam for their family deity, namely, Panaiyadi Amman, on the extreme eastern boundary and has been worshipping the same.

(b) According to the plaintiff, the defendants had demolished their house situated further east of the suit property and they have access to their property from the northern side through Manimakalai Street. Neither the defendants nor their predecessors-in-title had any right or entitlement of pathway over the suit property.

(c) It is the further case of the plaintiff that the defendants commenced construction in their property from 15.07.2011 and attempted to erect a wall on the edge of their western boundary. When the plaintiff approached the defendants and requested them to leave some space while constructing the western wall, the defendants ignored the same and proceeded with the construction. Hence, the plaintiff took steps to survey the suit property and the same was surveyed on 25.07.2011. However, despite the objections raised by the plaintiff, the defendants proceeded with the construction and on 31.08.2011 put up sunshades and windows by allegedly encroaching upon the suit property. The plaintiff lodged a complaint before the police on 01.09.2011, pursuant to which the defendants were warned by the police. Nevertheless, according to the plaintiff, the defen