The Order of the Court was as follows :

The plaintiff has preferred the second appeal aggrieved against the judgment and decree dated 25-8-99 made in A. S. No. 108 of 1998 on the file of Principal District Court, Tiruvannamalai, reversing the judgment and decree dated 9-7-1998 made in O. S. No. 981 of 1989 on the file of Additional District Munsif Court at Tiruvannamalai.

2. The case in brief is as follows :

The plaintiff filed a suit for permanent injuncion to restrain the defendant from putting up east west wall and also to put up a gate in respect of a common lane in the suit property. The suit property is a common lane belonging to the family of the plaintiff as well as the defendant. The plaintiff and his brothers have acquired 1/3rd right under a registered document dated 23-3-1983 and they used to reach the well through this way. The right of the plaintiff has been confirmed in the documents dated 23-3-1982 and 26-4-1972. The defendant attempted to put up a wall with a gate in the common lane on 25-9-1989 and he threatens to put up a lock also. The defendant has no right to put up any gate in the common lane.

3. The defendant contended that the suit property is not a common lane as claimed by the plaintiff. The defendant has the right of passage of use this lane for the purpose of reaching the common well situated on the north western side. The houses belonging to the brothers are situated on the northern side and the property measuring 3 feet east west is left in between the property of Pazhani Chettiar and Theerthagiri Chettiar. Excepting the right of way to reach the common well, there is no right for the plaintiff. This right is clearly stated in the Partition Deed dated 11-8-1943 between the defendant and his brothers. There is a specific reference that the land belongs to the defendant. Since the suit property is an open space, the cattle as well as other persons are causing nuisance. In order to prevent the trespass of the cattle and also prevent other anti-social elements from spoiling the atmosphere, the defendant attempted to put up a gate; but he never prevented either the plaintiff or other persons who have got right to reach the common well.

3. The trial court framed 4 isseus and on the basis of oral and documentary evidence, the suit was decreed. Aggrieved against this, the defendant preferred A. S. No. 108 of 1998 before the District Court, Thiruvannamalai and the appeal was allowed and the judgment and decree of the trial Court were set aside and the suit was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal.

4. The appellant/plaintiff has raised the following substantial questions of law;

1. Whether the Lower Appellate Court is correct in reversing the decree for injunction granted by the Trial Court by misconstruing Ex. B. 11 Partition deed

2. Whether the lower appellate Court is correct in law in rejecting Ex. A5 as inadmissible in evidence for want of registration;

3. Whether the judgment and decree of the lower appellate Court is sustainable in law when there is a substantial defect in procedure in discussion matter which are extraneous and not raised in the pleadings of the respective parties

4. Whether the lower appellate Court is correct in non-suiting the plaintiff on the ground that the suit property is the exclusive property of the defendant and the plaintiff has only a right to use the same as an easement and even that right had been lost

5. Whether the judgment of the lower appellate Court that there is an injunction against a co-owner is sustainable in law

5. Learned counsel for the appellant contended that Ex. B. 11 has not been properly considered by the lower appellate Court, wherein it is clearly set out that the suit property is a common lane. D. W. 1 also in the course of evidence stated that the suit property is a common lane. The learned Judge has completely overlooked that no claim to suit property is made on the ground of easement. Even under Ex. B11, the brothers of the defendant have been allotted specific shares within specified boundaries and each one of them has been specifically given a share in the lane which was kept in common, and as such, the defendant cannot clear exclusive right and put up a gate at the entrance of the common lane on the south. The lower appellate court also erred in law in holding that Ex. A5 compromise decree is inadmissible for want of registration. Under Ex. A5, no new right is conferred in respect of the common lane. The lower appellate Court also erred in coming to the conclusion that no injunction can be granted against the co-owner overlooking the fact that the co-owner cannot be allowed to cause prejudice to the other co-sharers by putting a gate at the entrance of the lane.

6. Learned counsel for the defendant contended that Ex. B.11 is earlier in point of time which has come into existence in the year 1943 when there was no dispute between the parties. There is a clear recital to the effect that the passage can be used only for the purpose of having ingress and egress to reach the common well. There is no indication to show, that the suit property is a common lane for all the persons. Further more, there was necessity to put up a gate at the entrance only to prevent the trespass of the cattle and also other persons causing nuisance in the area. Learned counsel for the respondent further stated that the plaintiff was never prevented from using the passage for the purpose of reaching the common well; but it cannot be used as a matter of right to reach the other houses situated nearby.

7. Heard the learned counsel for both sides.

8. The points that arise for consideration are

1. Whether the plaintiff is entitled to the relief of permanent injunction

2. Whether the judgment and decree passed by the lower appellate Court is proper and correct

3. To what relief

9. Points : The appellant/plaintiff has filed the suit against the defendant for permanent injunction that the defendant should not put up any gate in the east west direction at the entrance of the lane. Learned counsel for the plaintiff contended that the suit property is a common lane and the defendant has no right whatsoever to put up any gate. The plaintiff mainly relied upon the document dated 23-3-1983, wherein this property has been described as a common lane. It is admitted that there is a well situated on the northwestern side of the suit property. It is also not in dispute that the plaintiff has got 1/3rd right in the common well and because of this, according to the learned counsel for the plaintiff, the defendant has no exclusive right in the suit property and he cannot put up any gate to prevent the ingress and egress of the plaintiff.

10. Per contra, learned counsel for the defendant/respondent contended that the plaintiff, at best, can use this property only as a passage to reach the common well for the purpose of taking water and it is not a common lane. There was already partition on 11-8-1943 between the defendant and his brothers, wherein it is clearly stated that there is right of way only for the purpose of taking water and there is no reference about common lane as now claimed by the plaintiff. Learned counsel for the defendant further stated that there was necessity for putting up a gate at the entrance of the property only for the purpose of preventing the trespass of the cattle and other people causing nuisance in that area. Now, the plaintiff has come forward with a suit for permanent injunction only and he has not claimed any declaration that the suit property is a common lane. The burden is only on the plaintiff to prove that it is a common lane. When the right of the plaintiff has been disputed, the plaintiff ought to have amended the plaint as one for declaration to establish his right; but for reasons best known, it has not been done by the plaintiff. The evidence adduced by the parties as well as the documents only established that the suit property is not a common lane as claimed by the plaintiff.

11. Ex. B. 11 is the partition deed between the defendant and his brothers in 1943 when there was no dispute between the parties. The schedule of property has been given as A, B, C and D schedule properties. In the description of property in B schedule, it is stated as follows :

(Vernacular matter is omitted - Ed.)

Similarly in A schedule property also, it is stated as follows :

(Vernacular matter is omitted - Ed.)

Similarly in D schedule property also, it is described as follows :

(Vernacular matter is omitted - Ed.)

It is, therefore, clear from the aforesaid recitals in the document of 1943 that the plaintiff cannot claim any right in the property excepting to use the same as right of way to reach the common well. The document relied on by the plaintiff is only later in point of time and when the recitals in 1943 document are very clear, the reference, if any, in the subsequent document as if it is a common lane cannot be given much credence. In fact, the lower appellate Court has given valid and sound reasons to take a different view from the trial Court.

12. Learned counsel for the plaintiff also relied upon Ex. A5 relating to the copy of the compromise decree in C. S. No. 203 of 1966 on the file of District Munsif Court, Tiruvannamalai. This document had been made use of by the plaintiff in order to show that the suit property has been left as a common lane belonging to all the parties and, as such, the Court can come to the conclusion that the suit property is a common lane. It is necessary to state that the present suit property was not the subject matter of the proceedings in the earlier suit. Simply because in the compromise memo, this property has been described as a common pathway, it cannot be concluded that it was treated as a common lane by all the parties concerned. Learned counsel for the defendant also raised an objection that the compromise recitals in Ex. A 5 have not been registered and, as such, it cannot be accepted and acted upon. For this, learned counsel for the plaintiff relied on S. Noordeen v. Thiru. Venkita Relliar, for the proposition that a decree, though passed on compromise attracts exception engrafted in clause (4) of Section 17(2), and that decree is not required to be compulsorily registered. Reliance is also placed upon Bhoop Singh v. Ram Singh Major, that the compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration in a converse situation, it would require registration. If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- or upwards in favour of any party to the suit, the decree or order would require registration. Reliance is also placed upon another decision of this Court in Shrewood Educational Society v. Abid Namazie, 1997 (1) MLJ 44, that it is settled law that the best evidence in a case is the admission of the opposite party. There is no dispute about these propositions but the applicability of the same depends upon the facts and circumstances in each case.

13. Learned counsel for the plaintiff/appellant also relied on Ishwar Dass Jain (dead) v. S. Sohan Lal (dead), 2000 (1) CTC 359 [LQ/SC/1999/1147] that there can be interference with findings of fact is permissible when material or relevant evidence is not considered which, if considered would have led to opposite conclusion. Such interference is also permitted when findings of fact had been arrived at by placing reliance on inadmissible evidence which if it was omitted, opposite conclusion was possible. In either of these situations substantial question of law would arise for consideration and interference with findings of fact is permissible. Learned counsel also relied on the decision reported in Rohini Prasad v. Kasturchand, that where misreading of evidence by appellate Court would lead to miscarriage of justice or its finding is based on no evidence and thus perverse, held, High Court would be justified in interfering in second appeal.

14. P. W. 1 in the course of cross examination admitted that in Ex. A5, there is reference about common pathway and not as common lane. He also admitted that his usage has not been prevented by the defendant; but if and when a gate is put up, there is a possibility for preventing his enjoyment. D. W. 1 in the course of cross examination stated about the recitals given in the partition deed of the year 1943. The plaintiff and the defendant have been respectively examined as P. W. 1 and D. W. 1 and apart from that, no other witness was examined. The documents now relied on by the plaintiff are of recent origin and the recitals contrary to the recitals in the year 1943 document, cannot be given much weight. The entire property has been divided in the partition of the year 1943 under 4 schedules, the description of property has been given, wherein the parties have left the suit property for the purpose of their convenient enjoyment. As the plaintiff has got 1/3rd right in the common well, he was given the right to use the pathway only for the exclusive purpose and by this he cannot claim right in the suit property itself. Learned Counsel for the plaintiff further stated that if and when the defendant puts up a gate at the entrance of the pathway, then it will not be possible for the plaintiff to enter into the pathway for the purpose of going to the well. I am of the view that there is some force in the contention of the plaintiff. If and when gate is put up and as the plaintiff is entitled to use the property for the purpose of ingress and egress to the common well, the gate should be kept open at least for a particular hour in a day, so that the plaintiff can make use of the same. If no such condition is given and if the defendant puts up a gate with lock, then it cannot be enjoyed by the plaintiff and, as such, I am of the view that the order passed by the lower appellate Court can be suitably modified under the given circumstances. It is made clear that the lower appellate Court has properly analysed the evidence as well as the documents and rightly came to the conclusion that the suit property is not a common lane and the plaintiff has got only a right of way to reach the common well. There is no substantial question of law to interfere with the finding of the lower appellate Court. Hence, the points are answered accordingly.

15. For the reasons stated above, the second appeal fails and is dismissed. However, if and when the defendant put up a gate in the east-west direction at the entrance of the suit property and if the gate is locked, it should be kept open between 8.00 a.m. and 9.00 a.m. on every Mondays, Wednesdays and Fridays. Consequently, C. M. F. No. 15672 of 1999 is also dismissed. No costs.

Appeal dismissed.