JUDGMENT

The plaintiff in O.S.No.135 of 2005 on the file of the Principal District Munsif Court, Kuzhithurai, which he had laid for bare injunction that the defendant be barred from trespassing into his property, is the appellant herein. The suit was decreed by the trial court, and the plaintiff suffered a reversal before before the Sub Court, Kuzhithurai, in the first appeal preferred by the defendants in A.S.No.32 of 2008.

Pleadings:

2.1 The case of the plaintiff is that he has purchased a plot measuring 10 cents from a certain Jacob under Ext.A1-sale deed, dated 01.08.1997. According to him, he had put up a residential building and also constructed a granite compound wall on the north. He claims that the defendants are trying to bring down a compound wall to enter his property and hence laid the suit for bare injunction.

2.2 There are eight defendants. In the written statement filed by defendants 1 and 3 to 7, and adopted by defendants 2 and 8, they principally allege that they are residents of Paruthivilai, Konamvilai and Thundamvilai, that these areas are located to the north of the suit property, that the main road from Munchirai - Vettuvenni is in the far south of the suit property, that to access the main road, these defendants and their ancestors and those from the locality have been using a six links wide pathway that runs through the property of the plaintiff, and that the plaintiff is trying to obstruct the pathway. They also pleaded that on 03.07.1995 they obtained a right of pathway over the property of the 8th defendant under Ext/B-1.

2.3 The plaintiff has filed a rejoinder, refuting the allegations in the written statement. In particular, the plaintiff pleads about a pathway connecting the property to the north of his property and the main road, which he would plead runs to the west of the plaintiff's property and others property to its immediate west.

3. The trial Court framed necessary issues and the dispute went to trial. Before the trial Court, the plaintiff examined himself as P.W.1 and also examined an independent witness as P.W.2. He produced Ext.A1 to Ext.A5 of which Ext.A1 is the title document in Malayalam of which Ext.A2 is the transliteration of Ext.A1 in Tamil.

4. For the defendants, the 1st defendant alone was examined as D.W.1 and he produced Ext.B-1 sale deed executed by the 8th defendant in favour of some of the defendants. The trial Court appointed an Advocate Commissioner for local inspection, and he had filed his reports, which are taken on record by the trial Court as Ext.C1 and Ext.C2. The Commissioner was also examined as C.W.1.

5. On appreciating the evidence, the trial Court decreed the suit. Its line of reasoning can be bullet pointed:

➢ There is no dispute that the plaintiff is the owner of 10 cents plot,

which he claims under Ext.A1, and patta too has been granted to him for the portion where the pathway is alleged to be there.

➢ The defendants have not raised any counter claim to secure the title to the pathway.

➢ The Commissioner has not clearly indicated about the existence of the alleged pathway in the property of the plaintiff.

➢ The defendants have not required the Commissioner to ascertain if there are any alternate pathways available to them.

6. Aggrieved by the said decree, the defendants preferred a first appeal in A.S.No.32 of 2008. Re-appraising the evidence before it, the first appellate Court differed from the trial Court and allowed the appeal. The first appellate Court has taken a view that the Commissioner has denoted a pathway in the middle of the plaintiff's property, and inasmuch as no alternate pathway is shown to be existing, he accepted the contentions of the defendants.

7. Aggrieved by the reversal in fortune before the first appellate Court, the plaintiff has preferred this appeal. The appeal was admitted for considering the following substantial questions of law:-

“i) Whether the dismissal of the suit by the Lower Appellate Court in its entirety in respect of plaint sched