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2008 DIGILAW 4009 (MAD)

Chinnusamy & Others v. Appu Gounder & Others

2008-11-04

M.VENUGOPAL

body2008
Judgment : Civil Revision Petition filed against the order dated 28. 2008 made in C.M.A.No.15 of 2008 on the file of the Principal Subordinate Judge,Salem reversing the order and decretal order dated 14. 2008 in I.A.No.535 of 2008 in O.S.No.365 of 2008 passed by the Principal District Munsif, Salem. The revision petitioners/plaintiffs/respondents have preferred this civil revision petition as against the Judgment dated 28. 2008 passed in C.M.A.No.15 of 2008 by the Principal Subordinate Judge, Salem in allowing the civil miscellaneous application. The learned Principal Subordinate Judge, Salem in Judgment dated 28. 2008 in C.M.A.No.15 of 2008 has inter alia held that on a perusal of sale deeds Exs A1 to A3, they do not reveal any such recitals in regard to the cart track and on the other hand the pathway right has been mentioned as Mamool thada Pathiyam and through the sale deeds no prima facie case has been made out by the revision petitioners/plaintiffs/respondents at present and that the revision petitioners/plaintiffs/respondents will have to prove that in the patta land S.F.No. 121/1, they were given a right of pathway and therefore, the grant of temporary injunction by the learned Principal District Munsif , Salem in I.A.No.535 of 2008 in O.S.No.365 of 2008 is unsustainable one and resultantly allowed the civil miscellaneous appeal. 2. According to the learned counsel appearing for the revision petitioners, the learned Principal Subordinate Judge, Salem has failed to consider that the respondents herein sold the property situated in S.Nos.121/4,121/5,121/6,121/12,121/13 in Vaniyambadi Village at Salem District to the first petitioner through sale deed dated 12. 1980 and sale deed dated 6. 1993 along with a cart track which exists in S.No.121/1 and which has been named in the sale deed as" mamool Thadam" and that the first appellate Court has not taken into account of the fact that the said cart track is only a mode of access to reach the revision petitioners land from the main road and that the terms "mamool thada pathiyam in the sale deed dated 12. 1980 and the sale deed dated 6. 1993 executed by the respondents herein clearly established that there has been a cart track at the time of execution of sale deeds and that the revision petitioners/plaintiffs have been permitted to use the same and in any event prays for allowing the revision petition to promote substantial cause of justice. 3. 1980 and the sale deed dated 6. 1993 executed by the respondents herein clearly established that there has been a cart track at the time of execution of sale deeds and that the revision petitioners/plaintiffs have been permitted to use the same and in any event prays for allowing the revision petition to promote substantial cause of justice. 3. The learned Principal District Munsif, Salem in I.A.No.535 of 2008 in O.S.No.365 of 2008 while allowing the said application has inter alia opined that 1946 deed which is marked as Ex A1 mentioned about the cart track which is usually existing and used by the petitioners. Even assuming there is no cart track as alleged by the petitioners and there is no mention about the cart track under the F.M.B. as well as the document but the circumstances of the suit property, wherein situate reveals that the petitioners have to cross the land of the respondents to reach the road as a matter of necessity and that the petitioners must use the respondents land for their agricultural purpose to reach the main road and in that view of the matter has granted interim injunction as prayed for and allowed the application without cost. 4. However, the learned first appellate authority in C.M.A.No.15 of 2008 filed by the appellants/defendants has allowed CMA and setting aside the order passed in I.A.No.535 of 2008 dated 14. 2008 by the Principal District Munsif, Salem. This Court has paid its anxious consideration on the argument placed by the revision petitioners and noticed the contentions. A perusal of the sale deed dated 6. 1993 in favour of Palanisamy, being the father of plaintiffs 1,3,4 and 5 by the defendants refers to all mamool right of way. However in the said sale deed at the schedule of the description of property, there is no express mention of the right of the cart track. Therefore, it cannot be said in clear terms that another right of the cart track has been mentioned in the said sale deed dated 6. 1993 in the considered opinion of this Court. Admittedly, the revision petitioners/plaintiffs will have to establish that the respondents/defendants in patta land S.F.No.121/1, had right of pathway. Therefore, it cannot be said in clear terms that another right of the cart track has been mentioned in the said sale deed dated 6. 1993 in the considered opinion of this Court. Admittedly, the revision petitioners/plaintiffs will have to establish that the respondents/defendants in patta land S.F.No.121/1, had right of pathway. Inasmuch as the main suit filed by the revision petitioners/plaintiffs has been filed only with regard to declaratory relief of plaintiffs right to use the cart track shown in the plaint rough plan in red colour and also for permanent injunction restraining the defendants and their men in any way interfering with the revision petitioners/plaintiffs peaceful possession and enjoyment of the suit property and since the respondents/defendants have filed their written statement on 26. 2008 and taking note of another important fact that the suit is ripe for trial,without going into the merits of the case, this Court, at this juncture dismisses the civil revision petition, leaving open the contentions/disputes in the suit in the interests of justice. 5. In fine, the civil revision petition is dismissed and the judgment passed by the learned Principal Subordinate Judge, Salem dated 28. 2008 in C.M.A.No.15 of 2008 is confirmed by this Court for the reasons assigned by this Court in this revision petition. Considering the facts and circumstances of the case, this Court directs the Principal District Munsif, Salem to dispose of the main suit in O.S.No.365 of 2008 within a period of three months from the date of receipt of a copy of this order. Liberty is given to the parties to raise all contentions/objections in the main suit and they have to seek their remedy in accordance with law. It is open to the revision petitioners/plaintiffs to file necessary application before the trial Court in the manner known to law and seek appropriate remedy,if they are so advised. NO order as to costs. Consequently, connected M.P.Nos. 1 and 2 are also dismissed.