JUDGEMENT

The plaintiff whose decree for permanent injunction had been modified by the Lower Appellate Court is the appellant before this Court. The facts are briefly set out herein below and the parties are referred to in the same ranking as before the Trial Court.

2. The plaintiff had filed the suit O.S.No.395 of 2006 on the file of the II Additional District Munsif, Kallakurichi seeking a permanent injunction in respect of a cart track measuring 15 links east-west and 318 links north-south running through R.S.Nos.280/4 and 516/11 which was bounded on the west by plaintiff and Ponnusamy’s patta land, east by defendant’s patta land, south by the main road and north by Marudamuthu’s patta land.

3. It is the case of the plaintiff that the suit cart track and the other properties were originally owned by the defendant’s father, Ramar Udaiyar and his brothers, Annasamy and Natesa Udaiyar. The brothers had effected a partition under a registered partition deed dated 05.10.1965. In the said partition deed, there is a reference to the suit cart track and its measurement is shown as 15 links. After the partition, the parties were in peaceful possession and enjoyment of their respective shares and were using the suit cart track as an access to reach their respective lands.

4. Thereafter, Annasamy Udaiyar one of the brothers had sold some of the items of properties to his brother Natesa Udaiyar under a registered sale deed dated 05.05.1985. Thereafter, Natesa Udaiyar had sold these properties to the defendant under a registered sale deed dated 10.12.1985. The defendant in turn had sold it to the plaintiff under a registered sale deed dated 27.05.1982. Under this sale deed, the plaintiff had purchased two items of the property, namely, the property comprised in R.S.No.280/1 and 280/4 together with the usage of the cart track. The plaintiff would submit that the suit property (cart track) is the only access to reach his land. This was being used by him from the date of his purchase. However, on account of a recent enmity, from 05.06.2006 the defendant was preventing the plaintiff’s usage of this cart track. Therefore, the plaintiff had come forward with the present suit in question.

5. The defendant had filed a written statement inter alia admitting that under the partition deed, the cart track measuring 15 links had been allotted to all the 3 sharers. The defendant would also state that under the partition deed it had been clearly mentioned that the pathway was available only for the parties to the partition deed and in case any one of them sold the property to a third party such third party would not have an access to this pathway. That apart, the defendant had stated that although in the deed it has been stated that the pathway is measuring 15 links, however, the parties had formed a pathway measuring 12 links east-west and enjoying this pathway. In fact, it was only a pathway measuring 12 links that had been formed is evident from a sale deed executed in favour of one Ponnammal by the sharers. It is wrong to state that the defendant had conveyed the right of way when he had sold the property comprised in S.Nos.280/1 and 280/4 to the plaintiff. The defendant would submit that the pathway that had been conveyed to the plaintiff was another pathway (i.e; the pathway shown in the plaint plan beyond the point C proceeding westwards then turning north and once again turning west). Therefore, the defendants sought for a dismissal of the suit.

6. The Trial Court had framed the following issues:- 1. Whether the plaintiff was in enjoyment of the suit property?

2. To what other relief the plaintiff was entitled to?

7. The plaintiff had examined himself as P.W.1 and another witness was examined on his side as P.W.2 and Ex.A.1 to Ex.A.5 were marked. The defendant had examined himself as D.W.1 and one Sakthivel as D.W.2 and Ex.B.1 alone was marked on the side of the defendant.

8. The Trial Court had decreed the suit on the ground that the restriction pla