IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2025 CORAM:

THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI S.A.No.1120 of 2009 and M.P.No.1 of 2009 T. Subbaian ...Appellant/Respondent/Defendant Vs.

1.M.Rangaswamy (died)

2.Chinnammal

3.Padma

4.Rajammal

5.R. Kalaivani

6.R. Suresh Kumar

7.R. Radhakrishnan ... Respondents/Appellants/Plaintiffs (R4 to R7 brought on record as the legal representatives of the deceased 1^st respondent viz., M. Rangasamy vide Court order dated 30.07.2021 made in C.M.P.Nos.11370, 11371 and 11373 of 2021 in S.A.No.1120 of 2009 by PTAJ) Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 12.09.2006 made in A.S.No.90 of 2006 on the file of the learned III Additional Subordinate Judge, Coimbatore, reversing the Judgment and Decree dated made in O.S.No.213 of 2001 on the file of the learned District Munsif, Mettupalayam.

For Appellant : Mr.G.Karthikeyan, Senior Counsel for Mr.E. Karthik Raja For Respondents : Mr.C.R. Prasanna for R2 to R7 R1 - died JUDGMENT The above Second Appeal arises against the Judgment and Decree dated in A.S.No.90 of 2006 on the file of the learned III Additional Subordinate Judge, Coimbatore, reversing the Judgment and Decree dated made in O.S.No.213 of 2001 on the file of the learned District Munsif, Mettupalayam.

2.Challenging the reversal findings of the First Appellate Judge, the defendant preferred this Second Appeal.

3.Before the Trial Court, originally the respondents 1 to 3 herein are the plaintiffs, filed a suit for declaration to declare their right for using the suit cart track directing the defendant to restore the suit cart track -cum- passage to its original position, as it was about 25 years ago and for permanent injunction with other consequential reliefs. The suit was contested by the defendant. The Trial Court, after taking into consideration the oral and documentary evidences of both sides held that as per the evidence, the suit cart track -cum- passage was altered about 25 years ago to the suit and there is no documentary evidence to show that it was made at the insistence of the defendant. After a period of 25 years, the plaintiffs approached the Court which is barred by limitation and finally held that the plaintiffs are not entitled for any other relief.

4.Challenging the said findings, the plaintiffs filed an appeal in A.S.No.90 of 2006 on the file of the learned III Additional Subordinate Judge, Coimbatore, wherein the First Appellate Judge independently analysed the facts and circumstances by framing separate point for consideration and by placing reliance of the Advocate Commissioner's Report as well as the documents, viz., Parent title deeds produced by the plaintiffs, finally held that the plaintiffs proved the fact that their forefathers were in enjoyment of the suit cart track -cum- passage. Thereafter, the plaintiffs were continuously enjoying the same. Later on, on the request made by the defendant, the suit cart track -cum- passage was shifted to the lands owned by the defendant. Thereafter, they destroyed the suit cart track -cum- passage. Hence, the plaintiffs are entitled to the relief of declaration of their right to use the suit cart track -cum- passage and also held that the suit is not hit by res judicata as prayed for by allowing the appeal. Challenging the reversal findings of the First Appellate Court, the defendant preferred this Second Appeal.

5.The brief facts of the case are as follows:

The case of the plaintiffs isi that the great grandfather of the 1^st plaintiff, namely, Thippanna Gowder, owned lands in S.F.Nos.30/1, 32/2A, 32/2B, 32/3A1, 32/3A2, 32/3B, 35/2 and 34/3 situate at Thekkampatti Village, Mettupalayam. The said Thippanna Gowder during his lifetime sold an extent of 1.07 acres in S.F.No.35/2, 0.15 cents in S.No.34/3 totalling 1.22 acres to one Ramaiah Gowder, who is the grandfather of the defendant under Ex.A.1 - Sale Deed dated 14.12.1929. At the time of selling the pro