Consistent recitals in prior sale deeds establish common pathway rights, prevailing over later exclusive claims absent explanation.

JUDGMENT :

N. Mala, J.

The second appeal is filed against the judgment and decree in A.S.No. 171 of 2005, dated 14.10.2005, on the file of the learned Principal Sub Judge, Tirunelveli, reversing the judgment and decree of the learned II Additional District Munsif, Tirunelveli, made in O.S.No.653 of 2002, dated 01.12.2004.

2.The suit property consists of two items. Item No.1 relates to house in S.No.300 2b situated in Urudaiyarpuram, Tachanallur, Tirunelveli District. Item No.2 relates to the common passage measuring three feet to eighty feet.

3.The plaintiff's case is that the suit properties originally belonged to one C.M.Karuppan and Gomu Ammal. Upon the death of C.M.Karuppan, his sons, namely, Olimuthu, Gurusamy, Thiyagarajan and Durairaj, inherited the property. The plaintiff claims right to the suit properties by virtue of the sale in his favour by the sons of C.M.karuppan and Gomu Ammal. The plaintiff states that on 19.09.1976, the aforesaid four persons executed a Sale Deed in his favour and in the said Sale Deed, specific mention was made about the common pathway, which was described as the second schedule property. The plaintiff further states that another portion of the suit property was purchased by the plaintiff from Gomu Ammal under a registered Sale Deed dated 20.10.1978. Even in the said Sale Deed, specific mention was made about the common pathway. The plaintiff states that the defendants have plots on the west of the plaintiff's property and that the common pathway lies South of the defendants's property and it runs towards East. The plaintiff, for better appreciation of the physical features of the property, filed a rough sketch along with the plaint. The plaintiff further states that since the defendants attempted to claim a right over the suit common pathway by obstructing the plaintiff's ingress and egress through the common pathway, the plaintiff, issued a lawyer's notice to the defendants. The first defendant acknowledged the receipt of notice, but the second defendant refused to even receive the same. The plaintiff states that except the suit common pathway, there is no other access to his property and as the defendants interfered with his peaceful possession and enjoyment of the common pathway, he filed the suit for declaration of his right over the suit common pathway and a consequential injunction restraining the defendants from interfering with his enjoyment of the same.

4.The second defendant filed a written statement denying the Sale Deed dated 19.09.1976 in favour of the plaintiff. The defendants contended that the four persons, namely, Olimuthu, Gurusamy, Thiyagarajan and Durairaj had no right or title to execute the sale in favour of the plaintiff, since, Durairaj and Gurusami had sold their 1/4^th right in the plaint schedule property to one Madasami S/o.Muthu as early as in the year 1971, under two registered Sale Deeds dated 16.09.1971 and 20.12.1971. The defendants contended that Olimuthu executed a registered Sale Deed on 23.01.1974, in favour of his brother, Thiyagarajan. The defendants therefore contended that the alleged Sale Deeds of the plaintiff were invalid, false and fraudulent. The defendants contended that Thiyagarajan, never executed any Sale on 28.10.1978, in favour of the plaintiff, and therefore the plaintiff had no right over the common passage/pathway. The 2^nd defendant contended that the suit pathway was his exclusive property and that the plaintiff's contention that it was a common pathway, was false and untenable. The defendants disputed the ver