(Prayer: Second Appeal filed under Section 100 of C.P.C., to set aside the Decree and Judgment passed by the Sub Court, Attur in A.S.No.1 of 2012 dated 21.04.2015 and confirm the Judgment and Decree of the trial court in O.S.No.199 of 1999 dated 29.08.20211.)

1. This Second Appeal has been preferred as against the decree and Judgment passed by the Sub Court, Attur in A.S.No.1 of 2012 dated 21.04.2015 wherein the respondents herein have preferred the said Appeal as against the Decree and Judgment passed by the trial court in O.S.No.199 of 1999 dated 29.08.2011 on the file of the learned District Munsif, Attur. The said appeal was dismissed by confirming the decree and Judgment passed by the trial court. Aggrieved by the said decree and judgment, this Second Appeal has been preferred by the appellants / defendants.

2. For the sake of convenience and brevity, the parties in this appeal are referred as plaintiffs and defendants, as ranked in the trial court.

3. The brief averments of the plaint are as follows:-

                   (I) The suit property is a cart track and it lies in survey numbers 123/2, 123/3, 123/5A, 123/5B and 124/4 at Chockkanathapuram Village, Attur Taluk, Salem District. The said cart track is situated between the lands of the defendants on the north and Kalleri out plow odai on the south with the width of 12 feet. The said cart track is existing in time immemorial. The cart track is running from the Panchayat road leading south to north. The plaintiffs 1 and 2 have purchased the agricultural land in Survey No.123/4 to an extent of 0.12 acres, Survey No.122/3 to an extent of 2.72 acres and Survey No.122/8 to an extent of 0.05 acres through sale deeds dated 19.02.1986 and 20.02.1986 respectively. In the said sale deeds, the suit cart track has been specifically mentioned and the plaintiffs can access to the said lands only through this suit cart track. The said cart track has been used by the plaintiffs for taking cattles and transporting agricultural goods.

                   (ii) In fact, initially, the property in Survey Nos.122/4, 122/3 and 122/8 totalling an extent of 2.89 acres were purchased by one Vellaiyappa udayar through sale deed 13.08.1946 from Thoppaiya pillai son of Muthu Pillai. After demise of Vellaiyappa udayar, his legal heirs, partitioned the property through the partition deed. The plaintiffs purchased the property from the legal heirs of Vellaiyappa udayar. The defendants are the husband and wife and they have purchased the agricultural property on the western side of the plaintiffs’ land and prior to that, the said properties were purchased by one Kadasamy udayar through sale deed dated 22.01.1937 from one Rama pillai. In the year 1928, the lands of the defendants were enjoyed by one Sengapillai and others, likewise, the lands of the plaintiffs were enjoyed by one Thoppaiyapillai. In the year 1928, there was a dispute between Sengapillai and Thoppaiyapillai in respect of the said cart track thereby a suit in O.S.No.750 of 1928 was filed against Sengapillai and others and the suit was decreed and confirmed the existence of the pathway, thereafter, the said decree and judgment were challenged through the appeal before the Sub Court, Salem in A.S.No.80 of 1931 and the said appeal was allowed, therefore, the suit cart track is existing even before the year 1929 itself for more than 70 years, therefore, the plaintiffs are entitled to the said cart track by way of easement of prescription and easement of necessity. The defendants have no right to restrict the plaintiffs from using the said cart track.

                   (iii) On 27.06.1999, the defendants restricted the plaintiffs from using the said cart track, therefore, they filed the suit for relief of declaration of cart track in favour of the plaintiffs and for permanent injunction from interfering with the peaceful possession and enjoyment of the cart track.

4. The brief averments of the written statement filed by the defendants are as follows:-

                   (I) The suit is false, frivolous and not maintainable either in law or on facts. The defendants denied all the allegations levelled in the plaint except those that are specifically admitted herein. The description of the cart track and the properties over which the cart track is claimed are not clearly mentioned. The suit cart track is not the property of the plaintiffs. The claim is made along with the defendants’ property. The breadth of the cart track is not 12 feet. The lands mentioned in the plaint belong to the defendants and the said cart track does not exist in the lands as mentioned in the plaint. The suit cart track is not in existence from time immemorial.

                   (ii) The plaintiffs are having a separate cart track, which lies beyond the lands of the defendants. The plaintiffs can reach their land in the road lying within their limits. The plaintiffs cannot reach their land along the alleged cart track, There was an odai running along the defendants land before it was reclaimed, the odai has become water less and the plaintiffs have been using the panchayat road and entering their lands directly. The panchayat road to its entirety abets the plaintiffs’ land thereby they could enter into any point of land through panchayat road. The plaintiffs have lost their rights of easement by non-use for more than 30 years. The plaintiffs’ right of pathway, which was extinguished in the decree in O.S.No.750 of 1928 by the appellate Court will not in any way be helpful to the present plaintiffs, since the pathway is not in use for more than 30 years.

                   (ii) The plaintiffs and predecessors had abandoned the pathway along with odai canal, since it was in-convenient and running along a water force with ups and downs. If for any reason, this Court holds that the plaintiffs are entitled to pathway as found in O.S.No.750 of 1928 on the file of the District Munsif Court, Salem, the 3rd defendant in that suit and the defendants are bound by that decree. The defendants, as servient owners, entitled to direct the plaintiffs to restrict the user of cart track along with northern part of the defendants’ land with the width of 6 feet to reach their lands as per Easement Act. Therefore, the suit is liable to be dismissed.

5. Based on the above said pleadings after hearing both sides and perusing the records, the trial court has framed the following issues for trial:-

                   1. Is it true that the cart track mentioned in O.S.No.757 of 1928 was not used by the plaintiffs for more than 30 years?.

                   2. Whether the suit cart track is in under the possession and enjoyment of the plaintiffs?

                   3. Whether the plaintiffs are entitled to decree for permanent injunction in respect of cart track?

                   4. Whether the plaintiffs are entitled to decree for declaration in respect of the cart track?

                   5. To what other reliefs the parties are entitled to? Before the trial court, on the side of the plaintiffs, P.Ws.1 to 5 were examined and marked exhibits Ex.A.1 to A.26, on the side of the defendants, they examined D.W.1 and no documents have been marked. After analysing evidences adduced on both sides, the trial court has decreed the suit in respect of declaration and permanent injunction. Aggrieved by the said decree and judgment, the defendants have preferred the appeal before the Sub Court, Attur. After hearing both sides and perusing the records, the First Appellate Court framed the following point for determination:-

                   “Whether the appeal has to be allowed or not?

                   Thereafter, the First Appellate Court after elaborate discussions dismissed the appeal by confirming the Judgment and decree passed by the trial court. Aggrieved by the said decrees and judgments, the defendants have preferred the present Second Appeal.

6. This Court at the time of admission on 05.01.2016 formulated the following substantial questions of law :-

                   “1. Whether the Courts below were right in granting the decree in favour of the plaintiffs holding that the suit property is a pathway notwithstanding the fact, that the courts below have held that the plaintiffs have got no title, as claimed by them.

                   2. Whether the Courts below were right in holding the plaintiffs have got right of easement of necessity to use the property when there is an alternative pathway available to them.?”

7. The learned counsel appearing for the appellants would submit as follows:-

                   (I) The respondents/ plaintiffs have filed the suit for relief of declaration and permanent injunction in respect of the pathway as against the appellants / defendants, there is no pathway available as alleged by the plaintiffs in the plaint and the pathway is not in existence as stated in the plaint. The plaintiffs are claiming 12 feet pathway, there is no existence of pathway to the width of 12 feet. The documents produced by the plaintiffs, Ex.A.1 and A.2 are related to survey nos.148, 149 and 150, those survey numbers are no way related to the suit survey property. Even in Ex.A.3 and A.4, the suit survey numbers have not been mentioned and only mentioned as Mamool pathway. The First Appellate Court erroneously rendered a finding that Ex.A.1 to A.4 are related to suit cart track. The plaintiffs’ side witnesses admitted the alternative cart track is in existence, but the First Appellate Court erroneously rendered a finding that the appellants have not proved the existence of alternative cart track. The First Appellate Court erroneously held that the suit in O.S.No.758 of 1928 is related to this cart track, in fact, that cart track is not related to this suit property. There are no sufficient pleadings to prove easement by prescription or easement of necessity. The description of suit property is not correct and is not complied with the Order 7 Rule 3 of CPC.

                   (ii) The findings of the First Appellate Court that the cart track is in existence for more than 30 years and has been enjoyed by the respondents / defendants is against law. The court below failed to see that the alleged cart track does not find place in Exs.A.9 and A.26 and as per the revenue records, Ex.A.19 shows that survey no.123/3 is an odai poramboke and without impleading the Government as a party, the suit is not maintainable and the First Appellate Court shifted the burden of the appellants as if the respondents / defendants proved their case of easement and the same is not correct. The plaintiffs claiming title over the cart track claiming the easmentary rights, therefore, the suit is not maintainable. However, the courts below have failed to consider that the respondents / plaintiffs have failed to prove that easmentary rights of the cart track and when there is an alternative cart track, easement of necessary will not arise, therefore, the decree and judgment passed by the courts below are liable to be set aside by allowing the second appeal.

                   (iii) The learned senior counsel for the appellants in support of his contention has relied upon the Judgment of this Court in E.Elumalai Chetty Vs. Naina Mudali & Ors. in S.A.No.732 of 1980 dated 17.01.1986.

8. The learned counsel appearing for the respondents / plaintiffs would submit as follows:-

                   (i) The respondents purchased the properties in various survey numbers through sale deeds dated 19.02.1986 and 20.02.1986 respectively and to reach those lands, the only existing pathway is the suit property pathway and the width of the suit property pathway is about 12 feet. The said pathway has been in existence and the same has been confirmed by the learned District Munsif, Salem in O.S.No.750 of 1928 and thereafter, the same has been confirmed by the Sub Judge, Salem in Appeal No.80 of 1931, therefore, the said cart track is in existence for more than 70 years. The plaintiffs and the predecessors have been using the pathway to take the cattles for agricultural purpose, now the defendants are trying to restrict the plaintiffs from using said cart track and thereby the plaintiffs have filed the suit, there is no alternative pathway available to the plaintiffs and the plaintiffs are entitled to the easmentary rights over the pathway to reach their lands.

                   (ii) The alleged alternative pathway is only to reach the properties situated in survey no.124/2, whereas this cart track is to reach survey numbers 123, 122/3A, 122/3B, 122/4, 124/7. The said alternative pathway is used to reach lands situated in Survey Nos.122/1 and 122/2 and 124/4. There is a canal between the Survey No.124 and Survey Nos.122/3A, 122/3B, 122/4 and 124/7, therefore, the respondents / plaintiffs are using the pathway mentioned in the Commissioner’s report to reach the lands situated across the canal, therefore, the courts below have correctly appreciated the evidences adduced by the parties and the documents. Since the existence of the pathway has been proved by the plaintiffs, they are entitled to the decree and the courts below have correctly appreciated the facts, evidences and decreed the suit and therefore, there is no any grounds to interfere the concurrent findings of the courts below, therefore, the Second Appeal is liable to be dismissed.

9. Heard the learned senior counsels appearing for the appellant as well as the respondents and perused the entire documents placed on record.

10. In this case, the plaintiffs have filed the suit for relief of declaration of cart track in favour of the plaintiffs and for permanent injunction from interfering with the peaceful possession and enjoyment of the cart track. In the prayer, they sought for declaration of cart track but on entire reading of the plaint shows that the suit cart track is common cart track and the plaintiffs have not claimed the exclusive rights of the cart track and the defendants also not disputed the existence of the cart track. According to the defendants, there is no cart track to the width of 12 feet is available and particularly in the written statement they pleaded that if the court come to the conclusion that pathway is available, then, the pathway is only 6 feet and not 12 feet, therefore, the defendants have no any serious objection in respect of the existence of the cart track. The Plaintiffs have examined P.W.1 to 5 and marked Exhibits P.1 to P.26.

11. On a perusal of the evidences of P.Ws.1 to 5 and Exhibits Ex.P.1 to Ex.P.26, it clearly shows the existence of the cart track and the said cart track starts from the road and end with the odai canal. The defendants have not produced any documents, whereas already there was a dispute between the predecessor of the plaintiffs and defendants and a suit has been filed in O.S.No.750 of 1928 on the file of the District Munsif Court, Salem and the same was challenged through the appeal before the Sub Court, Salem in A.S.No.30 of 1931 and in those proceedings, the existence of the pathway has been confirmed. Though the commissioners were appointed before the trail court, the commissioner report has not been marked, due to insufficient particulars in the commissioner report. However, during the pendency of this appeal, advocate commissioner was appointed and the advocate commissioner also inspected the suit property and filed report and plan. As per the commissioner report, the pathway is in existence and it starts from the main road and running towards the northern side of the odai canal and in both sides, the defendants lands are situated and it continues till the end of the defendants property and thereafter, the commissioner failed to mention about the continuance of the pathway, however, according to the plaintiffs, the said pathway is running towards the odai to reach the survey numbers 122/3A, 122/3B, 122/4 and 124/7.

12. On a careful perusal of the Commissioner report and plan and the evidences of P.W.1 to 5 they reveal that the pathway is available till the survey no.124/8 and it starts from the main road and running towards northern side of the odai in S.F.No.123/5B, 124/3B and 123/2, which are the defendants’ land, therefore, the plaintiffs proved the existence of the pathway and according to the plaintiffs, there is no alternative pathway except this pathway to reach S.F.122/3A, 122/3B and 122/4 and 124/7.

13. On a further perusal of the Commissioner’s report it reveals that there is no alternative pathway except the suit pathway to reach those lands. The plaintiffs also pleaded for the easement of necessity. Earlier, even in the parental deeds, Exhibits, A.1 and A.2, the existence of pathway has been clearly mentioned, therefore, the plaintiffs have proved their case. According to the defendants, there is an alternative pathway available to reach the lands, but according to the plaintiffs, the said alternative pathway is only to reach lands situated in 124/2, 124/4 and 124/5 through 124/2, 124/4 and 124/5 and there is no pathway to reach the lands 124/7, 122/3A, 122/3B, 122/3C and 124/4.

14. On going through the evidence, commissioner report and sketch they reveal that the said alternative pathway is available to reach lands situated in Survey Nos.124/2, 124/4 and 124/5 and between 124/5, 124/4, 124/2 and the other lands of the plaintiffs, the odai canal is running, therefore, to reach those lands, only pathway is available is the suit pathway, therefore, the defendants failed to prove that alternative pathway is available to reach the lands of the plaintiffs, per contra, the plaintiffs have proved that suit pathway is the only pathway to reach their lands. Therefore, the courts below have rightly applied the law and decreed the suit, moreover the defendants themselves in the written statement admitted that they are bound by the decree passed by the court in O.S.No.750 of 1928 and they only denied the width of the pathway, once it is mentioned as cart track, it should be not less than 12 feet for taking cattles and cart and therefore, with the said six feet width, parties cannot take the cart and cattles through that path way, therefore, the courts below have correctly decreed the suit.

15. As far as the Substantial Question of Law (1) Whether the Courts below were right in granting the decree in favour of the plaintiffs holding that the suit property is a pathway notwithstanding the fact, the Courts below have held that the plaintiffs have got no title as claimed by them? is concerned, the trial court, in the judgment, after discussing about the documents and evidences held that in Exhibits A.1 to A.3, the Cart track has been mentioned as cart tracks to take carts, cattles and also further D.W.1 also in his cross examination admitted the odai running between the defendants’ land and also admitted the 6 feet path way and there is no alternative pathway to reach the lands of the plaintiffs and came to a conclusion that the plaintiffs are using the said pathway and decreed the suit. The First Appellate Court in the judgment after referring the documents and both sides evidences, and after analysing the evidence of P.W.5, who is the village administrative officer held that there is a pathway in existence in the patta lands adjacent to the odai canal. The defendants also admitted the existence of pathway, but according to them, the said pathway has not been used by the plaintiffs and according to the defendants, the plaintiffs were using the alternative pathway to reach their lands, but the defendants failed to prove their contention and also relied the documents Exs.A.1 to A.4, where the existence of pathway is clearly mentioned, therefore, decreed the suit. Since the plaintiffs are using the pathway for more than 70 years to reach their lands and there is no any alternative pathway in existence to reach their lands and the predecessors of the plaintiffs and defendants were enjoying the said suit pathway, the courts below have correctly granted the decree in favour of the plaintiffs and decreed the suit. Thus, the substantial questions of law is answered.

16. As far as the Substantial Question of Law no.(2) Whether the courts below were right in holding that the plaintiffs have got right of easement of necessity to use the suit property when there is an alternative pathway available to them’ is concerned,

According to the plaintiffs, they are using the pathway to reach their lands and except this pathway, there is no any alternative pathway available to reach the lands. According to the defendants, there is an alternative pathway available to reach the lands. On a careful perusal of the records and evidences adduced on both sides, it is clear that except this suit pathway, there is no any alternative pathway to reach lands situated in S.F.No.122/3A, 122/3B, 122/3C, 122/2, 122/4 and 124/7. The alleged alternative pathway is only available to reach the lands in S.F.No.124/2 and 122/5, there is no any pathway between 124/2, 124/4, and 124/5 and 122/3A, 122/3B and 122/3C, 122/4, 122/2 and 122/7, there is odai canal running towards east, thereby through the alleged alternative pathway, the plaintiffs cannot reach their lands, which is situated eastern side to the canal, through the said pathway, the plaintiffs can only reach their lands situated at western side of the canal. The defendants have failed to prove the availability of alternative pathway of the plaintiffs pathway to the eastern side to the canal, whereas the available documents clearly shows the existence of pathway from the north-south Panchayat odai till vaikal situated in S.No.124/8, 124/6, therefore, there is no alternative pathway available as alleged by the defendants. Therefore, the courts below are right in holding that the plaintiffs have got right easement of necessity in respect of suit schedule property, as there is no alternative pathway available to them. Thus the substantial questions of law is answered.

In view of the above said discussions and answers to the substantial questions of law, this Second Appeal has no merits and deserves to be dismissed. Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs.