JUDGMENT

The defendants are the appellants before this Court challenging the Judgement and Decree passed by the Principal Sub Court, Virudhachalam in A.S.No.47 of 2005, in and by which the learned Principal Sub Judge has confirmed the Judgement and Decree passed by the learned District Munsif cum Judicial Magistrate, Thittakudi in O.S.No.83 of 2002. The brief facts are as follows and the parties are referred to in the same rank as before the Trial Court.

2. The suit in question is filed to declare the suit property (pathway) as common to both the plaintiff and the 1st defendant and for a consequential injunction restraining the defendants from interfering with the plaintiff's usage of the said pathway.

3. The said pathway is a grama natham formed by the plaintiff contributing 1 1/8 feet on his side and the 1st defendant contributing 1 - 1/8 feet on his side. The length of the pathway is 57 feet and the breadth is 2 ¼ feet.

4. The case of the plaintiff is that the right to enjoy the said pathway has been reduced into writing on 31.01.1989 in an unregistered agreement and they have been in enjoyment of the said pathway for over decades. However, on account of recent difference of opinion between the plaintiff and the 1st defendant, the 1st defendant along with the other defendants had trespassed into the suit property on 01.02.2002 and tried to interfere with the plaintiff's enjoyment of the same. Therefore, the plaintiff has come forward with the suit in question.

5. The 1st defendant had filed a written statement in which the defendants had denied the averments contained in the plaint and they had also contended that the plaintiff had filed an earlier suit in O.S.No.202 of 2001 in respect of the very same pathway for bare injunction. While that suit was pending, the plaintiff had filed the instant suit. The defendants also raised a plea that the plaintiff had an alternative pathway to reach the rear side of his property through his house and it is this pathway that the plaintiff is using. That apart, the defendant had contended that on 10.05.1995, the Special Thasildar had granted patta under the updating survey schemes and they would state that the plaintiff is trying to establish a new right.

6. Further, the plaintiff after obtaining an interim order in the instant suit in I.A.No.429 of 2002 had withdrawn the earlier suit. The defendants had contended that the suit in respect of the very same property is not maintainable.

7. The Trial Court had framed the following issues:

“1/tHf;F brhj;jpy; thjpf;F mDgtk ;

vJt[k; ,y;iy vdg; J czi; kah>

2/thjp nfhUk; gupfhuk; bgw mUfuh>

3/ntW vdd; gupfhuk;> “

8. The plaintiff had examined himself as P.W.1, the 2nd defendant was examined as P.W.2 and one Mahalingam was examined as P.W.3. Ex.A.1 to Ex.A.7 were marked on the side of the plaintiff. The 1st defendant had examined himself as D.W.1 and one Kannan son of Sellamuthu as D.W.2.

9. The Trial Court on considering the evidence on record had proceeded to decree the suit as prayed for. Aggrieved by the said Judgement and Decree, an appeal was preferred by the defendants in A.S.No.47 of 2005 before the Principal Sub Judge, Virudhachalam.

The Lower Appellate Court also confirmed the Judgement and Decree passed by the Trial Court.

10. Aggrieved by the same, the defendants are the appellants before this Court and this Court was pleased to admit the above Second Appeal on the following Substantial Question of Law: “1.Whether the Judgement and Decree of both the Courts below are liable to be set aside for want of considering the vital issue as to maintainability of the suit in terms of Section 10 of Code of Civil Procedure and on erroneous finding as regards admissibility and reliability of Ex.A.1 unregistered agreement especially when the execution of the same was not duly proved?”

11. Mr.V.Ayyadurai, learned senior counsel appearing on behalf of the defendants / appellants would rest his entire arguments primarily on the fact that the plaintiff / respondent