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4. The defendants in their written statement denied the averments made in the plaint. According to the defendants "ABCD" portion of the plaint rough plan is situated within the survey no.102/3 which belonged to the defendants and not on the northern side of the defendants' property. Therefore, the pathway is not in existence as stated by the plaintiffs.

5. It is further submitted that only a 3 feet width pathway was in existence. But the plaintiffs have encroached to an extent of 6 feet and laid the pathway. The disputed portion is not a cart track but only a pathway. The defendants in their rough plan had shown the pathway from Koonavelampatty panchayat road leading to Alavaimalai as https://www.mhc.tn.gov.in/judis "X,X1,X2". The property belonged to the defendants are shown as "A,A1,A2,A3". The 3 feet width pathway in the defendants property is shown as "A1,A2,A3,A4". The newly laid pathway portion by encroachment is shown as "A4,A3,A5,A6" and the alternative pathway available to the plaintiffs are shown as "X3,X4,X5,X6" and "X7,X8,X9".

https://www.mhc.tn.gov.in/judis

11. In the reply statement filed by the plaintiffs, it is stated that the portion shown as "X,X1,X2" pathway in the rough sketch filed by the defendants alone is the pathway leading to Alavaimalai from Koonavelampatty panchayat road.

12.The Advocate Commissioner's report clearly says about the existence of 10 feet width pathway. By suppressing the same, the defendants are claiming as if only 3 feet width pathway is in existence. The Advocate Commissioner had also referred in his report that the alternate pathway "X3,X4,X5,X6" is running in a third party's land and another pathway "X7,X8,X9" is able to accommodate only one person for walking. The pathway agreement dated 17.07.1985 is a true and genuine document and signed by the parties therein. Since the defendants attempted to obliterate the suit pathway which was in existence for more than several years by accumulating metal wire, blue metals and stones, the plaintiffs with no other option approached the Vacation Court. Therefore, the counter claim has to be dismissed and suit has to be https://www.mhc.tn.gov.in/judis decreed as prayed for.

19. At the time of admission, the following substantial questions of law are framed:

a) Whether the judgment and decree of the Courts below are contrary to law and evidence on record.
b) Whether the findings of the Courts below are perverse for non-

consideration of the materials available on record.

20. The learned counsel appearing for the appellants would contend that the Courts below failed to see that the property situated in the survey no.102/3 belonged to the defendants which is not on the https://www.mhc.tn.gov.in/judis northern side of the defendant's property. He would submit that only 3 feet width pathway was alone in existence, but the plaintiffs have encroached further on both side of the 3 feet width pathway to an extent of further 6 feet and laid the pathway by including the 6 feet width.

35. Furthermore, the defendants failed to establish that no such pathway was in existence to the extent of 5 cubit as mentioned in the Ex.A6 mortgage deed by way of oral and documentary evidence. Even as per the report of the Advocate Commissioner marked as Ex.C1, a https://www.mhc.tn.gov.in/judis pathway to a width of 9 feet was found to be in existence on the date of his inspection. However, the trial Court did not grant relief for the entire 9 feet width pathway but only granted relief for 7.5 feet width pathway relying on Ex.A6 mortgage deed. Therefore, in the absence of any materials on record to establish the case of the defendants that only 3 feet width pathway was in existence, the claim of the plaintiff ought to be accepted.