The Court confirmed a plaintiff's entitlement to a pathway based on proper interpretation of a partition deed.

JUDGMENT

The appeal has been preferred challenging the judgment and decree of the Sub Court, Gobichettipalayam dated 29.03.2010 in A.S.No.44 of 2009. The deceased 1^st appellant is the plaintiff who has filed the suit in O.S.No.46 of 2001 for permanent injunction restraining the defendants from interfering with the plaintiff's usage of the alleged suit pathway. The Trial Court had dismissed the said suit on 11.03.2009. The First Appeal preferred challenging the judgment of the Trial Court also got dismissed on 29.03.2010. Aggrieved over that, the present Second Appeal has been preferred.

2.The short facts pleaded in the plaint of the plaintiff:-

(i). The plaintiff is entitled to his property as per the partition deed dated

30.03.1972 and the decree passed in O.S.No.12 of 1978 of this Court. The plaintiff was in possession and enjoyment of the extent as per the existing ridge. After the decree passed in the above suit, the plaintiff limited his cultivation to an extent of 2 acres and 15 cents, without measuring and formed a ridge to demarcate his extent of the property in his enjoyment. Even after the decree was confirmed by the High Court on 20.11.1978 in O.S.No.12 of 1978, the defendants are not willing to measure the land and put up a ridge between the lands of the plaintiff and the defendants 1 and 2.

(ii) The plaintiff is also entitled to a pathway of 12 links in width (8 feet and 8 inches) in the defendants land along the northern border as shown in the plaint plan. The 13 links pathway includes the irrigation koppu also. The defendants 1 and 2 are unlawfully interfering with the use of the pathway by claiming that there is no pathway. Subsequent to the suit, the defendants 1 and 2 sold their property to the 3^rd defendant by not mentioning the suit pathway in the sale deed. Hence, the purchaser has been impleaded as 3^rd defendant during the pendency of the suit. As the plaintiff has filed the suit for permanent injunction, later he amended it for also seeking mandatory injunction in respect of X, Y portion shown in the plaint plan.

3. The short facts pleaded by the defendants:-

(i) There is no pathway on the lines as pleaded by the plaintiff. Even in the description of the property in the suit, it is not mentioned that there is a pathway measuring 13 links and the plaintiff has been in enjoyment of the same. In the partition deed it is mentioned as 2 acre and 03 cents, but the plaintiff has filed a suit saying that he is entitled to 2 acres and 15 cents. It is not known whether the plaintiff has sought easementary right in respect of the excess 12 cents. But the earlier suit has not been filed on that ground.

(ii) The defendants had purchased the suit property in Survey No.142/1.

So it is false on the part of the plaintiff to say that the defendants have demolished the red marked portion. As the plaintiff has stated that he had established a ridge as a boundary between his property and the defendants property, there is no need to measure the property once again. The plaintiff has not filed a suit for declaration and the existence of the pathway also not established by way of seeking a prayer to appoint an Advocate Commissioner.

The 3^rd defendant also adopted the ridge. The 3^rd defendant remained exparte and he did not file written statement.

4. On the side of the plaintiff, two witnesses were examined as P.W.1 and P.W.2 and Exs.A1 to A9 were marked. On the side of the defendants, one witness was examined and Exs.B1 to B7 were marked.

5. At the conclusion of the trial and considering the evidence available on record, the Trial Court had dismissed the suit and appeal preferred by the plaintiff also got dismissed. Aggrieved over that, the Second Appeal has been preferred and this Court has admitted the Second Appeal on the following Substantial Quest