BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.04.2024 CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR S.A(MD)No.117 of 2012

1.Akkammal

2.Balamani 3.Ranjitham

4.S.Balasubramani ...Appellants -Vs-

Velusamy ... Respondent PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 30.10.2010 made in A.S.No.466 of 2004 on the file of the Chief Judicial Magistrate Court, Dindigul, confirming the judgment and decree dated 21.07.2004 made in O.S.No.257 of 2000 on the file of the District Munsif Cum Judicial Magistrate Court, Vedasandur.

For Appellants : Mr.S.Chandrasekar for M/s.Sarvabhauman Associates For Respondent : Mr.T.Antony Arulraj

JUDGMENT

The defendants 2 to 5 are appellants. The respondent herein filed a suit for declaration of his right of cart track over suit item-II so as to reach suit item-I and for consequential injunction restraining the appellants from interfering with his right of user and also for injunction from restraining the appellants from obliterating the cart track. The suit was decreed by the trial Court and findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the defendants 2 to 5 have come by way of this second appeal. The first defendant, who is the husband of first appellant/second defendant and the father of appellants 2 to 4/defendants 3 to 5, died pending first appeal and hence, this second appeal has been preferred only by the defendants 2 to 5.

2.According to the plaintiff/respondent, the suit item- I was allotted to the share of his father and his grandfather Ramasamy Naickar in the family partition dated 27.11.1956 between Ramasamy Naickar and his sons. The suit item-II was allotted to the share of deceased first defendant Gopalsamy Naickar. The plaintiff's grandfather Ramasamy Naickar was given right of easement to use cart track, which lies on the northern extremity of the lands in Survey Nos.23 and 24 allotted to the share of first defendant, to reach the first item of the suit property. Subsequently, the said Ramasamy Naickar executed a settlement deed on 24.12.1959 settling suit item-I along with easementary right over the suit Item-II in favour of plaintiff. From the date of settlement, the plaintiff has been using the suit item-II as a cart track to reach suit item-I. The defendants attempted to obliterate the cart track and annex the same along with their property on the southern side and therefore, the plaintiff was constrained to file a suit for declaration and injunction as prayed for.

3.The defendants filed a written statement admitting the allotment of first item of the suit property to Ramasamy Naickar. However, it was pleaded by the defendants that the recital in the partition deed dated 27.11.1956 and subsequent settlement deed in favour of the plaintiff dated 24.12.1959 as if suit item-II was cart track to access suit Item-I was included by inadvertence. It was also pleaded by the defendants that the plaintiff was having alternative cart track to access suit item-I and he was not entitled to declaration as prayed for. It was also claimed by the defendants that from the date of 1956 partition, the defendants have been enjoying the suit item-II along with property in the southern side without interference from anybody. They also claimed that the plaintiff never enjoyed the suit item-II as cart track to reach suit item-I. On these pleadings, the defendants sought for dismissal of the suit.

4.Before the trial Court, the plaintiff was examined as P.W.1 and yet another witness was examined as P.W2 and 18 documents were marked on behalf of the plaintiff as Ex.A1 to Ex.A18. The fifth defendant was examined as D.W.1 and one another witness was examined as D.W.2 and seven documents were marked as Ex.B1 to Ex.B7 on behalf of the defendants. The Advocate Commissioner's Report and Plan were marked as Ex.C1 and Ex.C2.

5.The trial Court, on appreciation of oral and documentary ev