J U D G M E N T

This Second Appeal has been filed against the Judgement and decree dated 29.11.2017 in A.S.No.31 of 2016 on the file of the II Additional Subordinate Judge, Salem confirming the Judgement and decree dated 22.06.2015 in O.S.No.969 of 2009 on the file of the Principal District Munsif, Salem.

2.The learned counsel appearing for the appellant would contend that the suit was filed by the appellant/plaintiff for restraining the defendants from in any way tresspassing into the suit property for causing damage to the crops available in the suit property and from in any way grabbing the suit property in the northern and eastern portion in the suit property and from in any way altering the physical features of the suit property.

3.According to the appellant, the courts below found that there was a path way in S.No.184/5A1. Both the courts below came to the conclusion that in the Ex.B1 Partition Deed, the path way has been mentioned. However, in the subsequent sale deeds the same path way has not been mentioned, as the same was extinguished long back as there was no trace of pathway.

4.The learned counsel appearing for the appellant further contended that adjacent to the first defendant's land there is a pathway, thus, there is no necessity for the first defendant to use the present pathway. Therefore, both the appellate court as well as the trial court have not considered all these aspects, in proper way. The Court below also appointed an Advocate Commissioner and found that there was no path way, without taking all these aspects, both the courts below dismissed the suit. Therefore, he contended the Judgment and Decree is perverse and the same is liable to be set aside.

5.Therefore, the learned counsel appearing for the appellant has suggested to frame the following substantial question of law and admit the appeal:

“i. When the existence of pathway and its identity is not proved by proper evidence, are the Courts below correct to hold that the availability of pathway in Ex.B1 is the reason to dismiss the suit?

ii. Are the Courts below failed to take note of non-existence of pathway at present as per the F.M.B. Plan and whether could it be relied upon for the availability of pathway mere reliance of Ex.B1, without sufficient proof?

iii. When the Counter Claim Petition file by the defendants claiming the right of pathway was dismissed, are the Courts below right in granting pathway under Ex.B1 in favour of the defendants to use the lands of the plaintiff as pathway?”

6.This court heard the submission of the learned counsel for the appellant and perused the Judgment and Decree of the trial court as well as the appellate court.

7.The trial court after considering the Ex.A1 to A9 and B1, the deposition of PW1 and DW1 came to the conclusion that a path way is exist and the relevant portion of the Judgment of the trial court is extracted as under:

''25. The plaintiff has sought for three injunction reliefs. One to injuct the defendants from trespassing into the suit property for causing damage to the crops available in the suit property. The second one is to restrain the defendant from grabbing the northern and eastern portion of the suit property. The thrid relief is to restrain the defendant from any way altering the physical feature of the suit property. From the description of property, it could be seen that there are two items of suit properties. The first item measures to an extent of 38 cents in Survey No.184/4A and the second item measures to an extent of 1.15 acres in Survey No.184/5A1. But the extent of second item has been wrongly typed in the description of property to the plaint as 0.15 cents instead of 1.15 acres. Whereas the extent of the second item has been mentioned as 1.15 acres in Ex.A2 sale deed and there is no dispute regarding the extent. The plaintiff has not whispered anything about the alleged cart track or common pathway which runs in Survey No. 184/5A1 as mentioned in Ex.B1 partition deed. The 1st defendant a