JUDGMENT

This Second Appeal has been filed against the Judgment and decree dated 28.04.2008 passed in A.S.No.99 of 2007 on the file of the Principal District Judge, Erode reversing the judgment and decree dated 18.04.2007 made in O.S.No.10 of 2004 on the file of learned District Munsif cum Judicial Magistrate, Kodumudi.

2. The facts which gave raise to the filing of the present Second Appeal are stated hereunder:

The appellant was the plaintiff and the respondents were the defendants in the suit. The plaintiff filed a suit seeking for declaration, to declare him as co-owner along with the defendants in respect of suit ''A'' schedule property and for permanent injunction restraining the defendants from in any manner interfering with the plaintiff's peaceful possession and enjoyment of suit ''A'' schedule property either by putting up any construction or causing any obstruction and further for mandatory injunction, directing the first defendant to remove the wall with doorway, toilet and septic tank morefully described in suit ''B'' schedule property.

3. According to the plaintiff, he purchased the properties on 14.09.1981 along with one Santhanam and second defendant. The said Santhanam was also allotted the western most side with 1/3rd share in the common pathway along with the second defendant and the plaintiff herein. According to the plaintiff, the Sale Deed mentioned about the common lane abutting the properties purchased by him, second defendant and the said Santhanam and the plaintiff was allotted eastern most property, the second defendant, who was adjacent to the plaintiff's property and the said Santhanam was allotted the western most side of the property.

4. According to the plaintiff, suddenly in the year

2003, he noticed that an illegal construction was put up on the western most side facing north containing toilet, septic tank and the bench in the common pathway, which was described as ''A'' schedule lane in the suit. Therefore, the suit was laid by the plaintiff, seeking declaration to declare him as a co-owner and also to remove illegal construction with a consequential prayer for permanent injunction. In the meanwhile, the said Santhanam appears to have sold the property in year 1992 to D1. The sale to Santhanam along with the plaintiff on 14.09.1981 was through a Sale Deed, which was marked as Ex.B1 and further sale by Santhanam to the second defendant was marked as Ex.B2.

5. The suit was resisted by the first defendant stating that when he purchased the property from one Santhanam, construction was already in existence and therefore, the second defendant or the plaintiff have no right to seek common pathway right to the entire lane adjacent to the western most property. A plea of limitation was also taken stating that the construction was put up either before 1991 or 1992 and the suit was filed only in 2004 and therefore, it is a clear case of suit being barred by limitation.

6. The trial Court, after appreciating various materials placed on record and also after going through the evidence, accepted the case of the plaintiff and decreed the suit in O.S.No.10 of 2004 on 18.04.2007. According to the trial Court, the crucial documents, viz., Ex.B1 and Ex.B2 Sale Deeds to Santhanam and the first defendant, had clearly mentioned about the right of common pathway for all the three purchasers viz., vendor of Santhanam, the second defendant and Santhanam sold the property to D1 (Ex.B2). Both the plaintiff and the defendants are having 1/3rd share in the common pathway. The trial Court has also held that the evidence of Santhanam, who was examined as D3, that he had put up construction in 1982 also could not be believed, since the document executed by way of Sale to D1 by Santhanam, the so-called construction was not reflected at all. Therefore, the oral evidence of DW3 cannot be relied upon ignoring the documentary evidence. The Trial Court has also held that the limitation aspect cannot be raised in this case since the c