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31. The defendants denied the title of the property and the specific contention of the defendants is that the vendor of the plaintiff have no right over the property more than 4800 sq ft. Without title they have alienated the property with excess land of 670 sq.ft. While so, it is the duty of the plaintiff to prove that the vendor of the plaintiff had title and possession over the https://www.mhc.tn.gov.in/judis property for an extent of 5470 sq.ft. and she has purchased the property from right persons with correct extent and she is in exclusive possession over the property for an extent of 5470 sq.ft. Though the suit is one for bare injunction when the defendant denied the title for whole extent of property it is the duty of the plaintiff to prove her possession for the entire property. The plaintiff failed to examine the vendor of the plaintiff as witness in the suit to establish that they had title and possession over the property for an extent of 5470 sq.ft. More over, the plaintiff has marked copy of sale deeds of her vendor as Ex.A3 has to A5 dated 9.12.1987. On careful perusal of those documents, it is seen that the sale deed in favour of Nirmala Ex.A3 land was purchased from her vendor for an extent of 1390 sq.ft. In that sale deed, four boundaries mentioned as Paruthipattu Village Punjai S.No.314/2 in this west of 20 feet common pathway, on the south of Ezhumalai plot, on the east of Ranganathan Vagayara plot, on the north S.Govindarajalu plot.

32. In Ex.A4 which is purchased by Chandiran, the property mentioned as Paruthipattu Village Punjai S.No.314/2, in this east of 20 feet with common pathway, west of Kannapiran Vagayara south plot of Kamala and north of S.No.312. In these, four boundaries an extent of 2000 sq.ft was https://www.mhc.tn.gov.in/judis purchased. In the Ex.A5 sale deed in the name of Govindarajalu the property details stated as Paruthipattu Village Punjai S.No.314/2, in this west of 20 feet road common pathway south of plot of Nirmala cast of Ranganathan vagayara, north of S.No.312, in this 1410 sq.ft land was purchased by the Govindarajalu. Therefore, from the documents filed by the plaintiff i.e., Exs A3 to A5, it is clear that the vendor of the plaintiff namely Nirmala had purchased an extent of 1390 sq.ft with a four boundary of 20 feet width common pathway. Another vendor namely Chandiran also purchased plot in S.No.314/2 Paruthipattu Village for an extent of 2000 sq.ft with a four boundary of 20 feet width common pathway. The another vendor namely Govindarajalu through Ex.A5 has purchased plot in S.No.314/2 Paruthipattu Village with an extent of 1410 sq.ft with four boundary of 20 feet width common pathway. Therefore, from the above said documents, it is clear that the plaintiff's vendor had right over the property only for an extent of 1390+1410+ 2000 sq.ft in total=4680 sq.ft. With 20 feet pathway right.

Substantial Question of Law: 2

41. The plaintiff contention is that the entire property belongs to her and she is in possession of the property. The defendants are claiming pathway right over the property. As discussed in previous point, the pathway touches with the land in SF.No.312 which belongs to first defendant. As per sale deeds Ex.A1 to A5 we can infer that the said pathway belongs to all the property holders in the said 314/2. It is not the case of the plaintiff that the said pathway exclusively belongs to the plots holders of the said property. but the plaintiff case is that the entire property including the pathway exclusively belongs to her. Once the property was converted into plots with pathway, it has to be used as pathway for common purpose. Once the pathway created for https://www.mhc.tn.gov.in/judis the plots thereafter the owner of the property cannot have any exclusive right over the property. The defendants contention is that he has been using the pathway as access to his land in S.F.No.312 and the municipality also taken over the land and as per the municipality records also it has been mentioned as pathway and exclusively sub divided as pathway.

44. Once the pathway is created, the same has to be used for that purpose only. In this context the trial court has discussed about the judgements in (1) 2007 (4) CTC 679 5 MLJ 243 in T.Gnanamani Ammal vs. https://www.mhc.tn.gov.in/judis The Avaniyapuram Town Panchayat and (2) Ammani vs The Tiruchengode Municipality and the trial court interpreted the said judgement that in this case there are unapproved layouts and not handed over the municipaltiy thereby not applicable but the trial Court failed to note the ratio decidenti is once the property allotted for public purpose the same have to be used for that purpose only and here also the pathway 20 feet road was formed for the plots holders and the said plots were also sold to various persons with 20 feet pathway for common purpose thereby the surrender of pathway to Municipality and approved plots or unapproved plots are immaterial. In the case of hand even the plots are unapproved the intention of forming pathway i.e., 20 feet road is to reach the plot holders from their respective plots to the main road. The original owners who converted the plots alone created and formed this 20 feet road for access from main road to all plots. Therefore whether the said road was given by Government and whether it is approved or unapproved layouts are immaterial and the purpose to form a road alone has to be taken into account. The plaintiff being adjacent land owner also claiming the pathway and thereby he cannot be stranger and thereby title of the property has to be decided. Whileso, specific prayer has to be sought for declaration. Therefore the said case laws are squarely applicable to the present https://www.mhc.tn.gov.in/judis facts of the case and the trial Court failed to apply the correct proposition of law. Further the defendants have produced the municipal records and they show the existence of pathway. Though DW.2 stated that he does not know whether the pathway was handed over to municipality, the documents Exs.XI. and X2 shows the existence of pathway. The plaintiff did not question the above municipality records. Therefore the first defendant cannot be treated as third party since they are claiming right of pathway over the property being adjacent owner of the said property. But the trial Court and the first appellate Court admitted the existence of pathway but their findings are the defendants being third party cannot question the title of the plaintiff and also the first appellate Court discussed about the easementary right and the first defendants failed to plead his easementary right and the defendants have not filed suit for declaration with regard to the path way.