JUDGMENT

The defendants are the appellants.

2.The plaintiff filed O.S.11 of 1992 before the Additional District Munsif Court, Ambasamudram for declaration that the 4th and 5th schedule properties are the common properties of the plaintiff and the defendants and consequential injunction restraining the defendants from disturbing the plaintiff's from entering into the 4th and 5th schedule properties through 'H' door in order to white-wash and maintaining the eastern wall. The plaintiff further prayed for an injunction that the defendants should not disturb the plaintiff's from using the 4th item as a common pathway by opening a door way in the eastern wall. The suit was decreed by the trial Court with regard to injunction prayer, but the same was dismissed with regard to the prayer for declaration. The defendants filed A.S.No.28 of 1999 before the Sub Court, Ambasamudram. The appeal was also dismissed. As against the same, the present second appeal has been filed by the defendants.

3.The plaintiff had contended that the suit items 1 and 2 are originally belonged to one Ramachandran Pillai and he had executed Exhibit A1 in favour of the plaintiff on 30.07.1975. The plaintiff further contended that the third schedule property originally belonged to one Kumarasamy and he had executed Exhibit A2 sale deed in favour of the plaintiff on 27.04.1976. According to the plaintiff, under Exhibit A2, the fourth item of the property was shown as a common pathway for the third schedule property. The plaintiff had further contended that the northern portion of the common passage is the fifth schedule property. According to the plaintiff, he is entitled to enter the common passage namely the 4th and 5th schedule properties through 'H' door on the eastern wall and maintain the northern portion and maintain the eastern wall. The plaintiff further contended that he is entitled to use the fourth schedule property to enter into Therkku Theru which is located on the south of the common lane. He further contended that the defendants are obstructing the usage of 4th and 5th schedule properties and hence, the prayer for declaration that the 4th and 5th schedule properties are common to both the plaintiff and the defendants and for consequential injunction.

4.The defendants filed a written statement contended that the plaintiff does have any right over the fourth schedule property. The said fourth schedule property has already been sold by the said Kumarasamy in favour of the defendants under Exhibit B1 on 06.04.1975. Thereafter, the said Kumarasamy has no right to execute Exhibit A2 sale deed in favour of the plaintiff. The defendants further contended that the fourth schedule property is the exclusive pathway available to the defendants. The defendants further contended that it is for the plaintiff to establish that they have any right over the fifth schedule property in order to maintain their eastern wall. The defendants further contended that the prayer for declaration of 4th and 5th schedule properties as the common properties was introduced much later in the plaint by way of an amendment and hence, the same is barred by limitation.

5.The trial court after considering Exhibits A1, A2, B1 to B3, oral evidence and the commissioner's report and plan, arrived at a conclusion that the 4th and 5th schedule properties have been shown as the common properties under Exhibit B2 partition deed and hence,the plaintiff will be entitled to use the said 4th and 5th schedule properties. The trial Court also found that the plaintiff is entitled to enter into the fifth schedule property through the doorway at 'H' in order to maintain the eastern wall. The trial Court also found that the fourth schedule property is a common property retained for the benefit of the brothers under Exhibit B2 and hence, the plaintiff, who is the purchaser from one of the co-sharers is entitled to fourth schedule property as a pathway. The trial court also found that since the fourth sched