This Appeal is directed against the judgment and decree of Sub Court, Srivilliputhur made in A.S.No.181 of 1994, partly reversing the judgment and decree of the learned District Munsif, Srivilliputhur passed in O.S.No.458 of 1992.
2. The plaintiffs are the appellants. They instituted the suit in O.S.No.458 of 1992, seeking declaration that A,B,C,D,E,F,G,H measuring 43 x 8 is common pathway and for mandatory injunction to remove the concrete over bridge B,C,F,G,, the second schedule.
3. Facts of the case are that one Kala Nadar was the owner of the property and he had two sons, viz., Thangaya Nadar and Ayya Nadar. The first plaintiff is the wife of deceased Thangaya Nadar while the first defendant, viz., Ayya Nadar is the second son of Kala Nadar. The plaintiffs would state that after the demise of the original owner 40 years ago, in an oral partition, two sons have partitioned the property in which 'C,D,I,J' and E,F,M,N' were allotted to the deceased Thangaya Nadar and the first defendant got 'B,C,J,K,' and 'F,G,C,M' properties, in between the parties, this first schedule common pathway was provided as access to reach their property.
4. According to the plaintiffs, the defendants, who are father and son have constructed over bridge to reach their property in the year 1992. The case was contested by the defendants stating that the bridge was constructed in the year 1987 and the prayer for mandatory injunction is barred by limitation.
5. The trial Court based on the pleadings had framed necessary issues and also appointed an Advocate Commissioner. In order to establish the case, the plaintiffs have produced Ex.A1, plaint plan, Ex.A2 - a copy of sale deed dated 13.09.1966, Ex.A3-letter received from the Electricity Board and Ex.A4- copy of the lawyers notice dated 31.01.1992. The report and sketch of the Advocate Commissioner were marked as Exs.C1 and C2. The second plaintiff was examined as P.W.1 and on behalf of the defendant one Mahalingam was examined as D.W.1.
6. The trial Court after analysing the evidence have decreed the suit. However, the appellate Court while confirming the decree of declaration, dismissed the suit in respect of mandatory injunction. Hence, the plaintiffs have come up before this Court in the Second Appeal.
7. The Second Appeal has been admitted on the following substantial questions of law:-
"1. Whether the Judgment of the lower appellate Court in rejecting the relief of mandatory injunction is sustainable in law, though the suit was filed well within the period of limitation?
2. Whether the reason that the suit bridge will not inconvenience the plaintiff while using the pathway is a valid ground to reject the relief of mandatory injunction, especially when the pathway is admittedly a common one?"
8. Heard Mr.S.Kadarkarai, learned counsel for the appellants and perused the materials available on record.
9. In the case on hand, it is not in dispute that the entire property was originally owned by the said Kala Nadar and it has been divided by an oral partition between his two sons and they have been enjoying their respective share.
10. The dispute is only with regard to usage of pathway. The defendant- D.W.1 in the course of evidence admitted that except 'A' schedule pathway, no other access is available to the plaintiffs and he had no objection for usage of path way. Exs.C1 and C2 corroborated the evidence of D.W.1. with regard to existence of path way. The trial Court as well as the first appellate Court, on the basis of the evidence referred above have held that the plaintiffs are entitled for declaration. P.W.1 has deposed that over bridge was constructed when he was away from his house in January 1992, but in the cross-examination stated that the construction of the bridge would take minimum 2 to 3 days, but he did not object the same.
11. The trial Court by applying the principles of acquiescence and following the decision in AIR 1977 Madras 342, has held that the construction of the bridge had taken place with the knowledge of the plaintiffs and it does not cause hindrance to the usage of the common path way, rejected the prayer of mandatory injunction. The findings have been given based on the evidence available on record and hence, they cannot be termed as perverse, warranting interference of this Court.
12. In view of the above discussions and findings, I find no merit in the Second Appeal. The questions of law are decided against the appellants. The Second Appeal fails and the same is dismissed. No costs.
To
1.The Sub Court, Srivilliputhur.
2.The District Munsif Court, Srivilliputhur.
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