said suit property and subsequently, the first plaintiff laid the suit for partition claiming 1/3 share in the house property and other items in O.S.No.65 of 1995, on the file of the Sub Court, Cuddalore and a preliminary decree was passed in the said suit on 30.01.1995 and later the first plaintiff preferred an application in I.A.No.315 of 1995 for passing a final decree and similarly the second plaintiff and the defendant filed another application for passing a final decree and in the said proceedings, a Commissioner was appointed, to divide the property. At the point of time, when the division was effected by the Commissioner, the house was in existence and the plaintiffs and the defendant agreed to demolish the existing house and put up a new construction within the portion allotted to them respectively, in the final decree, the East and West measurement of the house property was only 26 ½ feet and accordingly, as per the suggestions made , the two portions were divided in the front area adjoining the street, each to be allotted to the first plaintiff and the defendant and the back portion was suggested to be allotted to the second plaintiff and further it was also suggested that the common passage to be provided for the second plaintiff to reach the back portion and accordingly, the Commissioner had accepted the suggestions made by the parties and divided the property as suggested and the common passage in between the properties allotted to the plaintiffs and the defendant was demarcated and the final decree was passed, pursuant to the report of the Commissioner on 30.03.1995 and it has been specifically provided in the final decree that the parties should use the passage in common and the common passage provided under the final decree is shown in the plaint as A B C C1 F E D1 D and the property allotted to the first plaintiff is shown as B B1 C1 C and the property allotted to the second plaintiff is shown as E F G H and the property allotted to the defendant is shown as A A1 D1 D in the plaint plan and at the time of the partition, there was a wall in the portion shown as A A2 Q Q1 and R R1 D D2 and the same is the eastern wall of the property allotted to the defendant and there was a wall in the portion shown as P Q R S and there are two wooden pillars shown as W1 W2 in the plan and the hall was kept open originally and the defendant agreed to demolish the house portion and put up new construction within the portion allotted to him and due to misunderstanding, the defendant caused inconvenience in the enjoyment of the common passage and not demolished the wall shown as A A2 Q Q1 and R R1 D D2, so as to make it a passage and further, the defendant also laid a foundation on 15.07.1996 in the portion X1 X2 X3 X4, measuring north south 20 feet and east west 1 ¼ feet and dug up foundation in the common passage and attempting to put up further constructions in the common passage and hence according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs.
