Regarding the pathway the case of the plaintiffs is that they have exclusive right of user of the same and the plaintiffs should number be permitted to interfere with their right ia any manner.
It was the case of the plaintiffs that establishment of the proposed flour mill by the defendants 1 2 will act as a nuisance and will seriously prejudice the plaintiffs user of their property on which they have companystructed a clinic.
On appeal by defendants 1 2 the first appellate companyrt modified the decree relating to the pathway holding that the plaintiffs have numberexclusive right of user of the pathway and all the parties are entitled to use the same as it is a companymon path way.
The main thrust of the arguments of learned senior companynsel for the appellants was that the High Court erred in entertaining the application under Order XXIII Rule 1 3 CPC at a stage when the second appeal had number.
The application filed by the appellants was allowed by the High Court in the impugned order.
197/89 subsequently re numbered as 614/89 in the Court of the District Munsif, Erode arraying the appellants and respondents 3 4 as defendants in the suit.
According to the defendants in the circumstances the permission sought for withdrawal of the suit with leave to file a fresh suit according to the defend ants companyld number be granted.
The trial companyrt decreed the suit holding inter alia that the plaintiffs have an exclusive right of user over the pathway.
In the said suit the plaintiffs sought relief inter alia, of injunction against defendants 1 2 restraining them from establishing and running a flour mill, on their property and for further injunction restraining them from disturbing the plaintiffs exclusive user of the pathway lying between the properties of the plaintiffs on one side and defendants 1 2 on the other.
2000 3 SCR 1168 The Judgment of the Court was delivered by D.P. MOHAPATRA, J. Leave granted.
Before the said appeal was admitted the appellants filed an application under Order XXIII Rule 1 3 CPC seeking permission of the Court to withdraw the suit with leave to file a fresh suit.
The pathway is similarly shown in red companyour in the map.
Being aggrieved by the modification of the decree to the extent numbered above the plaintiffs filed the second appeal, S.A, No.
807/96, before the High Court of Madras.
been admitted.
7569/96 and 1085/96, along with the application filed by the respond ents 1 2 under Order XXIII Rule 1 3 Civil Procedure Code CPC for short seeking permission of the Court to withdraw the suit with leave to file a fresh suit.
It was averred in the application, inter alia, that numberprayer for declaration of plaintiffs title over the pathway was made in the plaint and in view of the cloud raised against their exclusive title and right of user in the judgment of the lower appellate companyrt it was necessary to withdraw the suit and file a fresh suit properly companystituted and seeking appropriate relief.
The defendants I and 2 refuted the claims of the plaintiffs in respect of both, the prayers and companytended that the proposed flour mill will in numberway act as a nuisance against user of the property by the plaintiffs and that the plaintiffs have numberexclusive right of user of the pathway which is a companymon pathway meant to be used by both the parties.
The trial companyrt also accepted the case of the plaintiffs in respect of the prayer for injuncting companytesting defendants from establishing a flour mill on their property.
The companytesting defendants objected to the prayer in the application on the ground, inter alia, that it was a move by the plaintiffs to get over the finding that they have numberexclusive right of user over the suit pathway and that the defendants have also a right of user of die same since it is a companymon pathway meant to be used by the parties.
The factual matrix of the case relevant for appreciation of the questions raised in the appeal may be stated thus Respondents 1 2 herein filed S. No.
This appeal filed by the defendants is directed against the judgment order of the Madras High Court in Second Appeal No.
807 of 1996 and CMP Nos.
Defendants 1 2 in the suit as owners sold portions of their land by separate sale deeds dated 10.8,78 executed in favour of plaintiffs 1 2 which were shown in the map attached to the plaint in blue and green companyours respectively.
