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30. Though the judgment was passed by the Trial Court as per the endorsement made by the defendants counsel as well as on the basis of the Memorandum filed on his behalf, in the operative portion of the judgment, the Trial Judge has failed to mention the exact measurement of the suit common pathway in width.

31. The learned First Appellate Court Judge has also, while confirming the judgment of the Trial Court, made the same mistake, failing to mention the exact measurement in width of the common pathway. But in the grounds of Memorandum of the Second Appeal, the appellant (defendant) in ground No.4, has stated that the Courts below have failed to see that the plaintiffs themselves did not rely upon the Memo and had adduced evidence. Consequently, the Memo could not be construed as a foundation for passing of a decree. Further, the endorsement made by the defendants counsel was without the consent and knowledge of the appellant (defendant) and as such, is not binding on the appellant. But this Court, on an harmonious reading of the judgment of the Trial Court as well as the First Appellate Court, with the endorsement made by the learned counsel for the defendant as well as the Memorandum, finds that the fourth ground raised by the appellant (defendant) in the appeal Memorandum is absolutely wrong and not able to be countenanced because as afore-stated, his definite stand is that the plaintiffs, being the owners of Lakshmipuram Building II, have the exclusive right to use the 12 feet width pathway.

32. Since the defendant has taken a definite stand that right from the first Sale Deed, a common passage of 12 feet width was conveyed only as a road leading from gate of Lakshmipuram Second Street, Mr.V.Raghavachari, learned counsel appearing for the plaintiffs, has submitted that let the plaintiffs (respondents) not interfere with the right of passage of the appellant (defendant) in respect of the 12 feet width pathway. He has also submitted that if the 12 feet width pathway is restricted, the appellant could not have any objection.

33. Keeping in view of the submissions made by Mr.V.Raghavachari, this Court finds that the judgment of the Trial Court as well as the First Appellate Court are liable to be modified, as detailed hereunder:-

The plaintiffs, being the owners of their respective Flats, are entitled to use the 12 feet width common pathway as shown in Ex.P-3, leading from Lakshmipuram Second Street to Lakshmipuram Building I and Lakshmipuram Building II. Similarly, the appellant (defendant) may be allowed to construct a boundary wall leaving 12 feet common pathway on the side and at the back side of the building.

34. Accordingly, the Second Appeal is allowed in part with costs. In so far as the prayer in plaint A portion is concerned, it is declared that the 12 feet width pathway is a common pathway. In so far as the prayer in plaint B portion is concerned, since the cause of action has not been proved, the suit is liable to be dismissed with costs on the defendant. Consequently, connected miscellaneous petition is closed.




									25-09-2014

Index    : Yes/No.
Internet : Yes/No.
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To

1.III Additional City Civil Court,
  Chennai.

2.XIII Assistant City Civil Court,
  Chennai.

















 T. MATHIVANAN, J.
											
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									25-09-2014