The defendants are the appellants. The plaintiff filed the suit for permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit properties viz. , cart track. The plaintiff claimed that he and his forefathers have been enjoying the cart track of about 13 feet breadth leading from mailapalayam kamalapuram "on"> "on"> panchayat road and runs towards north and ends in the plaintiff's land. The defendants also executed a muchalika in favour of the plaintiff confirming the right to use of the cart track by the plaintiff. Since the defendants with the help of some rowdy elements are threatening to interfere with the peaceful enjoyment of the cart track by the plaintiff, the suit has been filed for permanent injunction.
2. The defendants in their written statement contended that the measurement given as 13 feet as a cart track is not correct; there is an alternate cart track for the plaintiff to reach his house; the alleged muchalika is false; the, description of suit property is not correct the suit is liable to be dismissed.
3. The learned district munsif, mettur who tried the suit on the pleadings of the respective parties and on a consideration of documentary an oral evidence and placing reliance on the judgment reported in e. Elumalai chelty v. Naina mudali, (1986) 2 m. L. J. 81, held that the plaintiff is not entitled to the relief of permanent injunction. On appeal, the learned sub ordinate judge, sankagiri, reversed the said findings of the trial court and allowed the appeal. Hence the second appeal by the defendants.
4. At the time of admission, this court framed the following questions of law:
(i) whether a bare suit for injunction is maintainable for a claim of easement right over the defendants' suit property?
(ii) whether the plaintiff's suit for injunction is maintainable especially when the defendants denied the right of existence of cart track and in such a case whether the plaintiff ought to have prayed for declaration of right and title?
(iii) whether the lower appellate court is right in granting the decree of injunction over the defendants' property especially when the plaintiff has not even paid the court‑fee praying for such easementary right?
5. Learned counsel for the appellants attacked the judgment of the first appellate court on the grounds that, (i) no particulars like survey number, measurement of the suit cart track is given by the plaintiff and (ii) the suit is not maintain able without a prayer for declaration of title.
6. As far as description of the property is concerned under 0. 7, rule 3, c. P. C. , description of the property must be sufficient, enough to identify the property.
7. 0. 7, rule 3, of the c. P. C. , reads as follows:
Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
8. The description of properties contained in the plaint has been mentioned as detailed below:
Salem rd, omalur sro, in kamalapuram village, the lands bearing s. Nos. (i) 294/1, dry extent 1. 00. 00 hecs. (2) 295/3b dry extent 0. 90. 5 (3) 295/5 dry extent 0. 17 acres and the cart track of about 13 feet on the southern side of the respondent's/defendant's land leading from mayilapalayam panchayat road, and runs towards north and ends in the petitioner's/ plaintiff's lands and the easementary rights etc. , thereon.
9. The lower appellate court after taking into consideration of the recitals found in exs. D‑2 and p‑2 held that the plaintiff's properties situate on the western side of the 2nd defendant's properties and there was a cart track on the southern side running east west of the defendants' properties and ex. P‑2 would bind the defendants as neither the first defendant, nor the second defendant have chosen to examine themselves to disprove the case of the plaintiff. On the same ground the lower appellate court held that the muchalika executed by the first defendant also would bind him.
10. The lower appellate court rightly relied on the decision of this court in ramasamy meopanar v. Rathnammal, (1976) 1 m. L. J. 363, for the proposition that the question of title is not relevant for the purpose of considering the eligibility for injunction and a suit filed for injunction is maintainable. Hence the finding of the trial court that without a prayer for declaration of title, the relief of permanent in junction cannot be granted is incorrect.
11. An advocate commissioner was appointed and he inspected the disputed cart track twice and he was able to identify the cart track and filed a report about the existence of the cart track. Admittedly, the defendants have not filed any objection to exs. C‑1 and c‑2 submitted by the advocate commissioner. The third defendant has refused to receive the notice of inspection issued by the advocate commissioner. In is report, the advocate commissioner has categorically found that the cart track is of 13 ft breadth leading from mayilapalaymn kamalapuram panchayat road running east west and on the northern side the defendants possess their lands. He has also found that there was no other pathway or track to reach the plaintiff's properties. The defendants have also not established that there was alternate pathway apart from the disputed suit cart track. Ultimately, the lower appellate court on a detailed analysis of the evidence both oral and documentary held that the plaintiff is entitled to the relief of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff's properties and the defendants shall not disturb the ingress and eggress of the plaintiff over the cart track.
12. Learned counsel for the respondent relied on the decision of the supreme court in praffta singh v. Shanti devi prasad, a. L r 2003 s. C. 643, wherein their lordships of the supreme court have held that when the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by over looking of provisions contained in 0. 7, rule 3 and 0. 20, rule 3 of the c. P. C. , is capable of being cured. After all a successful plaintiff should not, be deprived of the fruits of decree. Resort can be had to sec. 152 or sec. 47 of the c. P. C. "
13. Learned counsel for the respondent also relied on the decision of the andhra pradesh high court in subba rao v. Amitunnisa begum, air. 1984 no. C. 300, wherein a division bench of the said high court have held that when the property has been identified by description of boundaries, even the mistake in survey numbers can be ignored.
14. Admittedly, in the present case on the basis of the description of properties given in the plaint, the advocate commissioner inspected the properties and submitted his report for which the defendants have not raised any objection or chosen to dispute the same by getting into the witness box. In the description of properties, the plaintiff has set out the survey number, measurement and the cart track from where it begins and running adjacent to whose lands etc. In the documents filed by the plaintiff, the description of the cart track has been clearly indicated. Hence the contention of the counsel for appellants that the plaintiff has not properly described the property is rejected.
15. As regards the first and third questions of law, the lower appellate court has held that on the basis of exs. P‑2 and p‑3, the first defendant has affirmed the right of the plaintiff to use the cart track and thus the plaintiff has acquired the said right by long usage and by way of necessity. Moreover the plaintiff has prayed only for the relief for permanent injunction with respect of schedule mentioned properties, and no specific relief for easementary right was prayed for. Hence there is no need to pay separate court‑fee for easementary right, hence both the questions of law are answered against the appellants.
16. As regards the second question of law, in view of the decisions cited above, this court holds that a suit for bare injunction without a prayer for declaration of title is maintainable.
17. In the result, all the questions of law are answered against the appellants and the second appeal fails and the same is hereby dismissed. No costs.