IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2024 Coram:

THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR S.A.No.976 of 2012 1.A.J.Basheerahmed

2.A.J.Mohammed Shereef ... Appellants / Plaintiffs Vs.

S.N.S.Sugumaran ... Respondent / Defendant Prayer: This Second Appeal is filed under Section 100 of Code of Civil Procedure praying against the Judgment and Decree passed in A.S.No.24 of 2010 on the file of the II Additional Subordinate Court, Coimbatore, dated 10.12.2011 by confirming the judgment and decree passed in O.S.No.266 of 2005 on the file of the District Munsif Court, Mettupalayam, dated 17.02.2010.

For Appellants : M/s.S.Kadarkarai For Respondent : M/s.S.Kingston Jerold

JUDGMENT

The appellant is the plaintiff in the suit who had lost before the Trial Court and the First Appellate Court. The plaintiff had filed the suit for permanent injunction restraining the defendants his men and agents or anybody claiming any right through him from in any way preventing the plaintiffs from using the suit cart-track which is shown as ABCDEF in the plaint plan either by obliterating the same or otherwise.

2. For the sake of convenience, the parties are referred to as per their litigative status before the Trial Court.

3. The case of the plaintiffs is that the defendant is owning the land on the south and west of the plaintiffs property. The defendant's lands are comprised in S.Nos.858, 859, 861, 862 and 865 to a larger extent. According to the plaintiffs, on the further west of the defendant's land, the Odanthurai Reserve Forest is situated. In the Lingapuram Village, a 20 feet road runs towards North and enter into Odanthurai Reserve Forest.

4. The said road further runs towards north in the forest and enter into the defendant's land in S.No.858, which was converted into a cart- track measuring about 10 feet. The said cart-track runs through the lands of the defendant which are comprised in S.Nos.859, 861, 865 and enter into the plaintiffs' land situated in S.No.866.

5. The plaintiffs contended that the lands owned by the plaintiffs and the defendant were originally owned by the family of the defendant. The lands of the plaintiffs and the defendant were originally owned by a single tenement and subsequently devolved on the defendant and his brothers. The plaintiffs' contention is that the plaintiffs' vendors have purchased the property from the family members of the defendant who have given the right in the cart-track which runs through the lands comprised in S.Nos.858, 859, 861 and 865.

6. The plaintiffs contended that there is no alternative path available to the plaintiff to enter into the plaintiffs' property apart from the suit cart- track. The plaintiffs have filed a rough sketch in which the cart-track is shown as ABCDEF.

7. The plaintiffs contended that ever since the date of purchase of the lands by the plaintiff, they are using the said cart-track without any let or hindrance. The right in the cart track is granted for the purpose of transporting agricultural products from the lands to Lingapuram Village and also to bring saplings and manure from the town to the lands of the plaintiffs. The defendant is preventing the plaintiffs from using the suit cart-track. With an intention to defeat the plaintiffs' right, the defendant is making attempts to obliterate the suit cart track. On 12.09.2005 and 14.09.2005, the defendant made attempts to destroy the cart-track with the help of his henchmen. The plaintiffs contended that the defendant is influential and powerful with men and material. The plaintiffs have filed an application for appointment of Advocate Commissioner to note down the existing physical features of the properties and the cart track. Since, the defendant has made several attempts to obliterate the suit cart track, the plaintiffs have filed the suit.

8. The defendant filed the written statement and denied all the plaint averments. The defendant contended that the passage cum cart track available in the defendant's land in S