J U D G M E N T

The 1st defendant is the appellant in this Second Appeal.

2.The 1st and 2nd respondents/plaintiffs filed the suit seeking for the relief of permanent injunction against the 1st defendant and to restrain the 1st defendant from interfering with the usage of the suit property by putting up any structure or barricade and thereby, prevent the ingress and egress to the property belonging to the plaintiffs. The plaintiffs also sought for the relief of mandatory injunction to restore the suit AB portion to its original position.

3.The case of the plaintiffs is that they became entitled to the properties on the demise of their mother on 20.01.1984. According to the plaintiffs, the portion shown as AB in the rough plan filed along with the suit is a street called as Mariamman Koil Street which is classified as a Poramboke in the revenue records and it is a public street vested with the 2nd defendant Municipality. On the southern side of this street exists the Mariamman Temple at S.No.43. The street is in S.No.42 and the schedule properties are in S.Nos.30, 31 and 32.

4.The further case of the plaintiffs is that for all the tenements in S.Nos.30 and 31, their only access is from Mariamman Koil Street in S.No.42 from time immemorial. Therefore, according to the plaintiffs, it will not be open to anyone to prevent the user or cause obstruction to the ingress and egress from any point in S.Nos.30 and 31 to this street in S.No.42.

5.The grievance of the plaintiffs is that the 1st defendant was making arrangements to put up a barricade in order to raise a structure in the place that has been earmarked as a public street. The plaintiffs further state that the said attempt was prevented by the 2nd defendant and in spite of the same, hectic preparation was done to barricade and put up a structure. According to the plaintiffs, if the same is done, it will virtually block the ingress and egress to the property belonging to the plaintiffs. It is under these circumstances, the suit came to be filed seeking for the reliefs stated supra.

6.The 1st defendant filed a written statement and they took a stand that S.No.42 is vested with the Mariamman temple and the temple car was parked in that place and during the festival days, the temple car used to be pulled and it was taken around the Mariamman temple. A further stand was taken in the written statement to the effect that the renovation and construction is done by the Committee and they should be made as party in the suit. The 1st defendant denied all the claims made by the plaintiffs and sought for the dismissal of the suit.

7.The 2nd defendant filed a written statement and took a stand that S.No.42 has been categorized as a Sarkar Poramboke and Mariamman temple street is situated in this survey number which runs from the Mariamman temple to the Salem road. According to the 2nd defendant, the 1st defendant is putting up construction in the place belonging to them and the plaintiffs do not have any right to question the same.

Accordingly, the 2nd defendant also sought for the dismissal of the suit.

8.The trial Court on considering the facts and circumstances of the case and after analyzing the oral and documentary evidence, dismissed the suit through a Judgment and Decree dated 31.10.2007. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.48 of 2011. The lower Appellate Court on reappreciation of the oral and documentary evidence and after considering the findings of the trial Court, allowed the appeal through Judgment and Decree dated 28.03.2012 and thereby, the Judgment and Decree of the trial Court was set aside. As a result, the suit was decreed as prayed for. Aggrieved by the same, the 1st defendant has filed the Second Appeal.

9.This court while admitting the Second Appeal, framed the following substantial questions of law:

"1. Is not the lower Appellate Court wrong in returning a finding that the T.S.No.42 was a public street vested with a municipality contra to the case of t