IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 09.01.2025 Pronounced on 12.03.2025 CORAM THE HON'BLE Ms. JUSTICE R.N.MANJULA SA.No.1170 of 2013 and MP.No.1 of 2013 Kadhir Rajarathinam S/o N.Kadhirvelu ... Appellant Vs.

1.M.Arumugham S/o Muthu Gounder

2.N.Kadhirvelu S/o Natesa Gounder

3.R.Prabhakaran S/o Poosari ... Respondents Prayer :- Appeal filed under Section 100 of the code of the Civil Procedure, 1908 praying to set aside the Judgement and Decree dated 31.10.2012 made in A.S.No.4 of 2011 on the file of the Principal Sub Court, Salem- reversing the judgement and decree dated 26.10.2010 made in OS.No.833 of 2010 on the file of the Principal District Munsif Court, Salem.

For Appellant : Mr.T.Murugamanikam, Senior Counsel for Mrs.zeenath Begam.

For Respondent : Mr.Ramaraj for R1 : RR2 & 3 -Given up

JUDGEMENT

The second defendant is the appellant. The plaintiff has filed the suit for bare injunction in respect of Items 1 and 2 of the suit property and mandatory injunction in respect of Item 3. The suit was dismissed by the trial Court and the first appeal preferred by the plaintiff was allowed and the suit got decreed. Aggrieved over the same, the present Second Appeal has been preferred by the second defendant.

2. The short facts pleaded in the plaint are as follows:

Items 1 and 2 of the suit property belong to the plaintiff by virtue of the sale deeds dated 19.07.1978 and 18.03.1979 and the plaintiff is in possession and enjoyment of the same. The second defendant is the son of the first defendant and the third defendant is the grandson of first defendant's brother Murugesa Gounder. Originally the suit properties belonged to Kumarasamy Gounder and Ponnusamy Gounder through a partition deed of the year 1932. After their lifetime of Kumarasamy Gounder, his sons namely Natesa Gounder, Murugesa Gounder and Raju @ Palanisamy Gounder have partitioned the same along with the well and a channel. The 5/8^th share on the eastern side situated on the northern side of the well has been allotted to the share of Kumarasamy Gounder and the remaining 3/8^th share was alloted to the three sons of Kumarasamy Gounder and Ponnusamy Gounder. The three sons of Kumarasamy Gounder were enjoying the vary land as common pathway and that was specifically mentioned by Murugesa Gounder while effecting partition between his sons. Subsequently, Poosari who is one of the sons of Murugesa Gounder had sold a portion of the property in favour of Subramanian by giving him a right over 15 ft. common pathway to reach the road. The sale deed in his favour was attested by Sundaram who is the brother of Poosari.

2.1 The plaintiff had purchased the first Item of the suit property from Subramaniam by virtue of a sale deed dated 19.07.1978 with all easementary rights and one Balu s/o. Kandasamy and Manickam s/o. Raju @ Palani Gounder had attested the said sale deed as witnesses.

2.2 The plaintiff had purchased the second Item of the suit property from Poosari and his minor son Prabhakaran through a sale deed dated 08.03.1979 and the same was attested by Manickam S/o. Raju @ Palani Gounder and the first defendant. Thus the plaintiff has acquired title over Items 1 and 2 and he has been in enjoyment of the same from the date of his purchase without any objection. The said Poosari had sold the remaining land on 08.03.1979 in favour of Antony Samy and third defendant. The son of Poosari had sold his house by mentioning 15 ft. as a common pathway. The defendants are trying to alienate 15 ft. common pathway to third parties by closing the southern side well situated in Survey No.27. The defendants have blocked 15 ft. pathway up to Ananthayi Ammal's house on the eastern side. The plaintiff requested the defendants to remove the obstruction as he has been enjoying the pathway as easementary right. The plaintiff has filed the suit for permanent injunction.

3. The averments made in second defendant's written statement are as under :

It is true that the plaintiff had purchased Items 1