The absence of a parent sale deed does not negate a plaintiff's title when evidence supports their claim of ownership and possession.

JUDGMENT

This Second Appeal has been filed to set aside the judgment and decree dated 27.02.2012 made in A.S.No.24 of 2010 on the file of the Sub- ordinate Judge and Appellate Authority of the Nilgiris at Uthagamandalam by confirming the decree and judgment dated 22.06.2010 in O.S.No.39 of 2006 on the file of the District Munsif of Kotagiri.

2 . Heard Mr.D.Ashok Kumar, learned counsel for the appellant and Mr.V.Chinnasamy, learned counsel for the respondents and perused the materials available on record.

3. The appellant is the plaintiff who has filed a suit for permanent injunction against the defendants. The Trial Court has dismissed the suit and the First Appeal preferred by the plaintiff was also dismissed by confirming the judgment of the Trial Court.

4. In fact, the defendants have raised a counter claim for seeking the relief of declaration that the 'B' schedule property of the counter claim is a common pathway and a consequential permanent injunction. The counter claim was also dismissed. The defendants have also filed a cross appeal before the First Appellate Court and the same was dismissed and the judgment of the Trial Court was confirmed.

5. The short facts pleaded in the plaint by the plaintiff are as follows:

The suit property measuring 2 1/2 cents was originally belonged to the plaintiff as it was a self acquired property by virtue of a settlement deed dated 23.04.1999 executed by his wife. The plaintiff is in possession and enjoyment of the same. The property also included a right of pathway. The plaintiff has constructed a house in a portion of 2 1/2 cents and the mutation was also effected in the revenue records in the name of the plaintiff and the remaining part remains in possession of the plaintiff. The defendants are the neighbours and they have their separate right of way for entering into their house and they have no manner of right to occupy the plaintiff's suit property.

5.1. The defendants broke open the fence between the plaintiff and the defendants house during the absence of the plaintiff and started to use the plaintiff's land as an access to the defendants' house. When the plaintiff came to know about the same, he gave a police complaint. The police enquired the matter and warned the defendants and thereafter, the plaintiff closed the fence and asked the defendants not to interfere with his right over the property. The defendants came to the suit schedule property at 10.00 a.m. on 15.04.2006 with an intention of entering into the suit schedule property. The plaintiff resisted their attempt with great difficulties and thereafter, filed a suit for permanent injunction.

6. The short facts pleaded in the written statement and counter claim are as under :

The claim of the plaintiff that he is in possession of the house existing in the suit property is denied. There is an existing pathway that was assigned and confirmed in favour of the defendants through a registered sale deed dated 06.04.1979. The defendants are entitled to use the said pathway for their beneficial enjoyment of the house. The pathway is being enjoyed by them as an easementary right from 18.12.1981. The plaintiff resisted the defendants to use the pathway and that had caused a quarrel between themselves. In view of that, a Criminal case was registered before the Kotagiri Police Station by the defendants. The police warned the plaintiff not to obstruct the pathway and the matter got amicably settled there. As alleged by the plaintiff, they have not put up any fence and closed the pathway. The defendants continued to use the pathway as they do not have any other pathway to access their house.

6.1. The defendants' house property lies on the eastern side of the suit schedule property. The said property was purchased by the second defendant through a registered sale deed dated 18.12.1981 from one Yesumary and it comprised 3 cents in S.No.1168 / 2A. The sale deed of the vendor of the sec