JUDGMENT : The defendants are the appellants. 2. The plaintiff filed O.S.11 of 1992 before the Additional District Munsif Court, Ambasamudram for declaration that the 4th and 5th schedule properties are the common properties of the plaintiff and the defendants and consequential injunction restraining the defendants from disturbing the plaintiff's from entering into the 4th and 5th schedule properties through 'H' door in order to white-wash and maintaining the eastern wall. The plaintiff further prayed for an injunction that the defendants should not disturb the plaintiff's from using the 4th item as a common pathway by opening a door way in the eastern wall. The suit was decreed by the trial Court with regard to injunction prayer, but the same was dismissed with regard to the prayer for declaration. The defendants filed A.S.No.28 of 1999 before the Sub Court, Ambasamudram. The appeal was also dismissed. As against the same, the present second appeal has been filed by the defendants. 3. The plaintiff had contended that the suit items 1 and 2 are originally belonged to one Ramachandran Pillai and he had executed Exhibit A1 in favour of the plaintiff on 30.07.1975. The plaintiff further contended that the third schedule property originally belonged to one Kumarasamy and he had executed Exhibit A2 sale deed in favour of the plaintiff on 27.04.1976. According to the plaintiff, under Exhibit A2, the fourth item of the property was shown as a common pathway for the third schedule property. The plaintiff had further contended that the northern portion of the common passage is the fifth schedule property. According to the plaintiff, he is entitled to enter the common passage namely the 4th and 5th schedule properties through 'H' door on the eastern wall and maintain the northern portion and maintain the eastern wall. The plaintiff further contended that he is entitled to use the fourth schedule property to enter into Therkku Theru which is located on the south of the common lane. He further contended that the defendants are obstructing the usage of 4th and 5th schedule properties and hence, the prayer for declaration that the 4th and 5th schedule properties are common to both the plaintiff and the defendants and for consequential injunction. 4. The defendants filed a written statement contended that the plaintiff does have any right over the fourth schedule property. 4. The defendants filed a written statement contended that the plaintiff does have any right over the fourth schedule property. The said fourth schedule property has already been sold by the said Kumarasamy in favour of the defendants under Exhibit B1 on 06.04.1975. Thereafter, the said Kumarasamy has no right to execute Exhibit A2 sale deed in favour of the plaintiff. The defendants further contended that the fourth schedule property is the exclusive pathway available to the defendants. The defendants further contended that it is for the plaintiff to establish that they have any right over the fifth schedule property in order to maintain their eastern wall. The defendants further contended that the prayer for declaration of 4th and 5th schedule properties as the common properties was introduced much later in the plaint by way of an amendment and hence, the same is barred by limitation. 5. The trial court after considering Exhibits A1, A2, B1 to B3, oral evidence and the commissioner's report and plan, arrived at a conclusion that the 4th and 5th schedule properties have been shown as the common properties under Exhibit B2 partition deed and hence, the plaintiff will be entitled to use the said 4th and 5th schedule properties. The trial Court also found that the plaintiff is entitled to enter into the fifth schedule property through the doorway at 'H' in order to maintain the eastern wall. The trial Court also found that the fourth schedule property is a common property retained for the benefit of the brothers under Exhibit B2 and hence, the plaintiff, who is the purchaser from one of the co-sharers is entitled to fourth schedule property as a pathway. The trial court also found that since the fourth schedule property is a common pathway, the plaintiff will be entitled to open a doorway on the eastern wall facing the fourth schedule property. However, the trial court dismissed the prayer for declaration of title on the ground that the same has been introduced by way of amendment in the plaint, three years after the title was disputed by the defendants. Hence, the prayer for declaration was rejected on the ground of limitation. 6. However, the trial court dismissed the prayer for declaration of title on the ground that the same has been introduced by way of amendment in the plaint, three years after the title was disputed by the defendants. Hence, the prayer for declaration was rejected on the ground of limitation. 6. The First Appellate Court concurred with the findings of the trial Court after considering the sale deeds in favour of the plaintiff, the partition deed between the brothers under Exhibit B2 and the commissioner's report to arrive at a finding that the 4 th and 5th schedule properties are the common properties and hence, the plaintiff is also entitled to use the same. Based on the said finding with the judgment and decree of the trial Court, was confirmed by the First Appellate Court. As against said the concurrent findings, the present second appeal has been filed by the defendants. 7. The second appeal was admitted on the following substantial questions of law. (1) whether both the Courts below is right in law in granting the decree in favour of the plaintiff in respect of 4th and 5th schedule property in spite of non establishment of title in respect of the said properties? (2) whether both the Courts below is right in law in granting decree in favour of the plaintiff upon easementary right which was not established and proved as contemplated under Indian Evidence Act? 8.The learned counsel for the appellants contended that originally the suit schedule properties and other properties were owned by one Gomathinayagam Pillai and he died leaving behind his four sons namely Subramaniya Pillai, Kumarasamy Pillai, Chithirasabapathi Pillai and Gurusamy Pillai and also the legal heirs of the predeceased son namely Murugesa Pillai. All the brothers entered into a registered partition deed under Exhibit B2 on 05.08.1968. In the said partition, the second schedule property was allotted to the share of Kumarasamy Pillai. The said Kumarasamy Pillai has sold away his share in favour of the first defendant on 06.04.1975 under Exhibit B1. As per the said document, the pathway right in the eastern lane has already been sold away to the first defendant. Thereafter, the said Kumarasamy Pillai has sold another portion of his property allotted in the partition deed to the plaintiff under Exhibit A2 on 27.05.1976. As per the said document, the pathway right in the eastern lane has already been sold away to the first defendant. Thereafter, the said Kumarasamy Pillai has sold another portion of his property allotted in the partition deed to the plaintiff under Exhibit A2 on 27.05.1976. In the second sale also, the said Kumarasamy Pillai has dealt with the lane that was already sold in favour of the defendants. Hence, any recital under Exhibit A2 will not confer title upon the plaintiff, the subsequent purchaser. 9. The learned counsel for the appellants contended that the trial Court has dismissed the prayer for declaration of title and the same has not been challenged by the plaintiff by way of filing of the first appeal. When the Courts below have rejected the prayer for declaration, the consequential prayer for injunction over the 4th and 5th schedule properties in favour of the plaintiff ought not to have been granted by the Courts below. He further contended that when the plaintiff has not established his title, the question of granting the consequential relief for the same schedule properties will not arise. He further contended that the plaintiff's sale deed, namely Exhibits A1 and A2 have not been proved in accordance with Section 68 of the Evidence Act. 10. Per contra, the learned counsel for the respondents contended that Exhibit B2 partition deed will clearly show that the present 4th and 5th items of the suit schedule properties have been retained as common properties and earmarked as sixth schedule property in the said partition deed. When a portion is retained as a common property of the brothers, whenever, the co-sharers alienated their share, he is also entitled to confer the right of usage of common passage in favour of the purchaser. He further contended that the said Kumarasamy Pillai is the common vendor of the plaintiff and the defendants. The said Kumarasamy Pillai has sold away the property allotted on the eastern side of the common lane to the defendants and thereafter, he sold away the property allotted on the western side of the common lane to the plaintiff. Hence, the plaintiff as well as the first defendant being the purchasers from the said Kumarasamy Pillai are entitled to use the 4th and 5th schedule properties as a common pathway even as per the sale deeds. Hence, the plaintiff as well as the first defendant being the purchasers from the said Kumarasamy Pillai are entitled to use the 4th and 5th schedule properties as a common pathway even as per the sale deeds. He further contended that the originally the suit was filed only for a bare injunction, but later it was amended and a prayer for declaration that the 4th and 5th schedule properties are the common properties were included. The prayer for declaration has been rejected by the trial Court on the ground of limitation. According to the learned counsel for the respondent, the permanent injunction prayer can survive even after the rejection of the prayer for declaration. He further contended that the recital in Exhibits A1, A2, B1 and B2 will clearly establish that the 4th and 5th schedule properties are the common properties of the brothers and consequentially a purchaser will also be entitled to use the same as common properties. Hence, he prayed for dismissal of the second appeal. 11. I have considered the submissions on either side. 12. It is not in dispute that the suit schedule properties and other properties were originally owned by one Gomathinayagam Pillai. He had five sons, namely Subramaniya Pillai,Kumarasamy Pillai, Chithirasabapathi Pillai, Gurusamy Pillai and Murugesa Pillai. After the death of said Gomathinayagam Pillai, his sons entered into a partition under Exhibit B2 on 05.08.1968. At the time of entering into a partition, the said Murugesa Pillai had passed away. His wife and his minor children were made parties to the partition deed. In the said partition deed, the second schedule property was allotted to the share of Kumarasamy Pillai. The sixth schedule property was retained as a common passage for the parties to the document. The seventh schedule property, called as a temple site was also retained as a common property for the brothers. 13. From the recital in Exhibit B2 partition deed, it is clear that the sixth schedule property was retained as a common passage for all the brothers. The said sixth schedule property has now been shown as 4th and 5th schedule properties in the present suit. 14. One of the allottees of the partition deed namely Kumarasamy Pillai was allotted properties both on the eastern side as well as on the western side of the common pathway namely the sixth schedule property under Exhibit B2 partition deed. The said sixth schedule property has now been shown as 4th and 5th schedule properties in the present suit. 14. One of the allottees of the partition deed namely Kumarasamy Pillai was allotted properties both on the eastern side as well as on the western side of the common pathway namely the sixth schedule property under Exhibit B2 partition deed. The said Kumarasamy Pillai had alienated the property located on the eastern side of the common pathway under Exhibit B1 in favour of the first defendant on 06.04.1975. In the said document, the purchaser namely the first defendant has been conferred with the right of usage of the common pathway. Thereafter, the said Kumarasamy Pillai has sold away the property that is located on the western side of the common pathway in favour of the plaintiff under Exhibit A2. A perusal of the recital in the said Exhibit A2 document, will show that the plaintiff was conferred with the right of the usage of common pathway. Hence, it is clear that the plaintiff was conferred with the right of usage of the common pathway allotted on the eastern side namely the fourth schedule in the plaint. 15. A perusal of Exhibits B1 and B3 also indicate that the defendants have purchased the property only with a right of common pathway in the fourth schedule property. Hence, the contention of the appellants that the said Kumarasamy Pillai had executed Exhibit B1 on 06.04.1975 and thereafter, he cannot execute Exhibit A1 in favour of the plaintiff is not legally sustainable. In all the documents, namely Exhibits A2, B1 and B2, the fourth schedule property has been shown as a common pathway for the parties. 16. Hence, the Courts below were right in granting a prayer for permanent injunction in favour of the plaintiff and as against the defendants not to disturb the usage of the pathway. That apart, once the fourth schedule property is considered to be a common pathway, the plaintiff cannot be prohibited from opening a door way on the eastern wall facing the fourth schedule property. The objections raised by the defendants are not legally sustainable. 17. The present suit was filed by the plaintiff originally with a prayer for permanent injunction. That apart, once the fourth schedule property is considered to be a common pathway, the plaintiff cannot be prohibited from opening a door way on the eastern wall facing the fourth schedule property. The objections raised by the defendants are not legally sustainable. 17. The present suit was filed by the plaintiff originally with a prayer for permanent injunction. Thereafter, a prayer for declaration that the 4th and 5th schedule properties are the common properties of the plaintiff and the defendants was included by way of amendment of plaint. The trial Court as well as the First Appellate Court have arrived at a finding that the said amendment has been sought for after a period of three years from the date of objection raised by the defendants in the written statement. Based on the said findings, the trial Court as well as the First Appellate Court have rejected the prayer for declaration of title. In fact, the plaintiff has not even filed any appeal as against the dismissal of his prayer for declaration. Hence, the learned counsel for the appellants contended that once a prayer for declaration is rejected, the consequential prayer for injunction ought not to have been granted by the Courts below. 18. In the present suit, the prayer for declaration is not for declaration of title to the 4th and 5th schedule properties. The declaration is for declaring that the 4th and 5th schedule properties are the common properties of the plaintiff and the defendants. In fact, the Courts below have arrived at a concurrent finding based upon Exhibits B2 and A2 that the 4th and 5th schedule properties are the common properties of the plaintiff and the defendants. The question of seeking declaration of title will arise only when the defendants create a doubt over the title or confronts the plaintiff with rival document. In the present case, the defendants have not produced any rival document to dispute the right of the plaintiff to use the fourth schedule property as a common pathway. 19. On the other hand, all the three documents produced on the side of the defendants, support the case of the plaintiff. When no cloud has been created over the right of the defendants, there is no necessity for the plaintiff to seek a prayer for declaration. 19. On the other hand, all the three documents produced on the side of the defendants, support the case of the plaintiff. When no cloud has been created over the right of the defendants, there is no necessity for the plaintiff to seek a prayer for declaration. Hence, the rejection of the prayer for declaration on the ground of limitation will not be an impediment for the Courts below to grant a decree for permanent injunction based upon the documents. In fact, the prayer for permanent injunction is not to protect his possession, but to protect the usage of common pathway in the 4th and 5th schedule properties. 20. Hence, viewed from any angle, the decree of permanent injunction granted by the Courts below cannot be faulted with. In view of the above discussion, the substantial questions of law are answered as follows: (i) the plaintiff has not sought for title to the 4th and 5th schedule properties, but only sought for declaring that they are the common properties of the plaintiff and the defendants. Hence, the Courts below were right in granting a decree in favour of the plaintiff. (ii) the Courts below have not granted a decree based upon the easmentary right, but based upon the right conferred upon the parties under Exhibit B2 document. 21. In view of the above said discussions, all the substantial questions of law are answered as against the appellants. The second appeal is dismissed. No costs.