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• The cause of action arose when the defendants put up certain construction on the northern side of the pathway obstructing the pathway when the plaintiff was away from her house,

3. In the written statement, the defendants admitted the existence of a common pathway separating their properties and the property of the plaintiff. They would allege that for discharging eaves water from their property, they had left 1 & 7/8 CCF which when converted will be around 5 ½ and odd feet. So far as dimension of the pathway is concerned, they deny that the width of the pathway on north and south is the same. While it https://www.mhc.tn.gov.in/judis is 3 CCF in south, in the north it narrows down considerably. 4.1 The dispute went to trial. During trial, the plaintiff examined herself as P.W.1 and has also examined her son as P.W.2. For the defendants, the second defendant examined himself as D.W.1. While the plaintiff has produced Exts.A.1 to A.9, the defendants have not produced any documentary evidence.

4.2 The trial court also appointed a Commissioner for local inspection whose report and plan were received on record as Exts.C.1 and C.2. On appreciating the evidence before it, the trial court found that the existence of the pathway but declined to grant a decree for the dimension which the plaintiff asserted. It found that the width of the pathway on south is 8.1 feet and that it narrows down to 4.7 feet in north. For arriving at this conclusion, the trial court essentially relied on Ext.A9, wherein the western boundary is not shown to be the pathway for the entire north-south length but only for a substantial portion on the north, and for the southern portion it is given as third party's properties. This southern portion as per the evidence available on record, has since become the property of the plaintiff. This southern portion also belong to Deivayanaiammal and this she had purchased sometime in 1933, and reference to this comes in https://www.mhc.tn.gov.in/judis Ext.A.9 settlement deed, which Devaiyanaiammal and her sons had executed in favour of the plaintiff. It is in this document, the width of the pathway is given as 3 CCF or 8.25 feet. The trial court has held that the plaintiff has not produced any document to show that the width of the pathway was even throughout the entire north-south length, and hence declined to grant a decree in favour of the plaintiff for 3 CCF wide pathway. However, it granted a decree declaring that the pathway is a common pathway with a width of 4.7 feet on the north and 8.1 feet on the south and consequently declined to grant a decree for mandatory injunction.

5. Aggrieved by the said decree, the plaintiff preferred a first appeal in A.S.No.233 of 1991. The first Appellate Court decreed the suit in entirety, and its line of reasoning indicates that the defendant has not established how he became entitled to the portion constructed by him, allegedly on the pathway. In arriving at this conclusion the first appellate Court has essentially relied on Ext.A9, Ext.A1, A2 to A5 and also the report of the Commissioner to the effect that some new encroachments were found in the pathway and that the width of the pathway ought to be the same throughout, and it granted a decree declaring that the width of the pathway same throughout the entire north-south length, and also a decree granting injunction directing the defendants to remove the encroachments put up by https://www.mhc.tn.gov.in/judis them in the pathway. Hence, this second appeal is filed at the instance of the second defendant.

7. The dispute is over the width of the pathway and not about the existence of the pathway or its length. The plaintiff seeks a right of pathway over a width of 8.25 ft for the entire length from north to south. The Commissioner however had found that the pathway had a width of 8.1 ft in the south and it gradually narrows down to 4.7 ft. on north. The scope of the dispute narrows down to a short point if the width of the pathway in question is 8.25 ft. as claimed by the plaint, or at least 8.1 ft. as found by the Commissioner and the first appellate court, or is it 4.7 ft on the north as found by the trial court.