IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.06.2024 CORAM THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE Second Appeal No.145 of 2021 and C.M.P No.3090 of 2021 Duraisamy (Died)

Lakshmi ... Appellant ..Vs..

1.S.Sabapathi

2.S.Manoharan

3.Rajeswari

4.D.Rangaraj ...Respondents Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree dated 29.08.2019 passed in A.S No.119 of 2013 on the file of the II Additional Subordinate Court, Coimbatore, confirming the judgment and decree dated 13.02.2013 in O.S No.309 of

2006 on the file of the II Additional District Munsif Court, Coimbatore. .

For Appellant : Mr.D.R.Arunkumar For Respondents : Mr.A.E.Ravichandran for R4 No Appearance for R1 to R3

J U D G M E N T

This second appeal has been filed by the plaintiff in the suit challenging the concurrent findings of the Courts below.

2. The suit has been filed for declaration in respect of suit schedule property which the plaintiff claims that it is a common pathway to be enjoyed both by the plaintiff and the defendants.

3. In the forthcoming paragraphs, the parties are described as per the litigative status in the suit.

4. The plaintiff has relied upon a parent document namely mortgage deed dated 11.10.1939 registered as Document No.3676 of 1939 for the purpose of establishing that the suit 'B' schedule property is a common pathway to be enjoyed both by the plaintiff and the defendants. The plaintiff claims that the defendants have purchased the property by tracing their title only through the mortgage deed dated 11.10.1939, the suit schedule property is a common pathway which has to be enjoyed both by the plaintiff and the defendants as per the schedule. The plaintiff had purchased the suit 'A' schedule property under a sale deed dated 14.06.1995 and the suit schedule property adjoins the said property which the plaintiff claims that it is a common pathway to be enjoyed both by the plaintiff and the defendants.

5. However, as seen from the written statement, the defendants had denied that the suit 'B' schedule property is a common pathway to be enjoyed both by the plaintiff and the defendants. The defendants have purchased the entire property under a sale deed dated 23.02.1982. They claimed that they are in possession of their property eversince the purchase. They also claimed that they have obtained patta for the property purchased under a sale deed dated 23.02.1982. They have also pleaded that the suit is barred by limitation as the suit has been filed only in the year 2006. Whereas, the defendants had purchased their property in the year 1982 and they have also obtained re-survey patta for the property in the year 1997.

6. Based on the pleadings of the respective parties, the trial Court namely, the II Additional District Munsif Court, Coimbatore in O.S No.309 of 2006 dismissed the suit filed by the plaintiff by giving the following findings:

a) The plaintiff has not proved through his oral and documentary evidence that the suit 'B' schedule property is a common pathway to be commonly enjoyed both by the plaintiff and the defendants.

b) The exhibit A1, sale deed standing in the name of the plaintiff and Ex.A2, the sale deed standing in the name of the defendants does not reveal that the suit 'B' schedule property is a common pathway.

c) The FMB sketch marked as Ex.X2 through the Village Administrative Officer (DW2) does not disclose that the suit 'B' schedule property is a common pathway.

7. Aggrieved by the findings of the trial Court while dismissing the suit, the plaintiff filed a first appeal before the II Additional Subordinate Court, Coimbatore in A.S No.119 of 2013. The lower Appellate Court also confirmed the findings of the trial Court. Apart from confirming the findings of the trial Court, the lower Appellate Court had also held that the suit is barred by limitation since the patta was issued in favour of the plaintiff as early as 1997 and separate four boundaries were also identified, but des