(Prayer: Appeal filed under Section 100 of C.P.C. praying to set aside the Judgment and Decree passed in A.S.No.21 of 2003 on the file of the Sub Court, Tuticorin, dated 08.10.2004 reversing the judgment and decree passed in O.S.No.138 of 2001 on the file of the learned Principal District cum Judicial Magistrate, Thiruchendur, dated 22.10.2002.)

1. This Second Appeal has been filed challenging the judgment and decree passed by the Sub Court, Tuticorin, dated 08.10.2004 made in A.S.No.21 of 2003 reversing the judgment and decree passed by the learned Principal District Munsif cum Judicial Magistrate, Thiruchendur in O.S.No.138 of 2001 dated 22.10.2002.

2. Heard the learned counsel on either side.

3. The legal heirs of the deceased plaintiff are the appellants in the Second Appeal. The plaintiff filed the suit seeking for the relief of declaration to declare that he has a right over a 10 feet pathway in the “B” Schedule property and for a mandatory injunction directing the defendant to remove the fencing that has been put up in the pathway.

4. The case of the plaintiff is that originally “A” and “B” Schedule properties were owned by one Brahmaiya Nadar. After his demise, the property was inherited by his three sons. The “A” Schedule property was purchased by the plaintiff from the legal heirs and the “B” Schedule property was purchased by the defendant. The further case of the plaintiff is that the original owners of the property had specifically provided a pathway on the western side of the “B” Schedule property in order to access the “A” Schedule property. This pathway was utilised by the plaintiff from the year 1967 onwards.

5. According to the plaintiff, apart from the said pathway, there was no other pathway available to the plaintiff to have access to his property in the “A” Schedule. Thus, plaintiff has claimed for easement of necessity. While so, the defendant had fenced the pathway and thereby, prevented the plaintiff from having access to the pathway. In view of the same, the plaintiff was forced to use the property of the third parties in order to access his property.

6. It is under the above circumstances, the suit came to be filed before the trial Court seeking for a declaration that the plaintiff is entitled for 10 feet pathway in the “B” Schedule property as eastment of necessity and for mandatory injunction.

7. The case of the defendant is that there is absolutely no mention about the allotment of any pathway in favour of the plaintiff in the sale deed that was executed in favour of the plaintiff. Therefore, the plaintiff cannot claim the right of pathway over the property belonging to the defendant. The further case of the defendant is that there is an alternate pathway available to the plaintiff and therefore, the plaintiff cannot claim easement of necessity. Accordingly, the defendant sought for dismissal of the suit.

8. The trial Court, on considering the facts and circumstances of the case and after specifically placing reliance upon the evidence of P.W.2, came to a conclusion that even though there is no mention about the availability of the pathway in the “B” Schedule property in the document, there was an arrangement made by the original owner to allow a 10 feet pathway to the plaintiff to access his property in the “A” Schedule property. Apart from that, the trial Court also held that there was no other alternative pathway available for the plaintiff. Accordingly, the trial Court, by judgment and decree dated 22.10.2002 decreed the suit as prayed for.

9. Aggrieved by the judgment of the trial Court, the defendant filed an appeal before the Sub Court, Tuticorin in A.S.No.21 of 2003. The appellate Court, on appreciation of the oral and documentary evidence, came to a conclusion that the plaintiff has failed to establish that the 10 feet pathway was allotted in the “B” schedule property and that apart, the plaintiff also had an alternative pathway from the Southern side of the Karuppasamy Koil and therefore, the plaintiff is not entitled to claim easement of necessity. Accordingly, the Appellate Court reversed the judgment and decree passed by the trial Court and allowed the appeal. Aggrieved by the same, the legal heirs of the plaintiff have filed the present Second Appeal.

10. When the Second Appeal was admitted by this Court, the following substantial questions of law were framed:

                   “Whether the lower appellate Court is correct in holding that the appellants are having the alternate pathway in the absence of any specific pleadings and evidence?

                   2. Whether the lower appellate Court is correct in not adverting to the purport of Section 8 of the Transfer of Property Act particularly with reference to what passes on transfer under a document?

                   3. Whether the findings of the lower appellate Court is vitiated by failure to consider the evidence of P.W.1 and P.W.2 and the report of the Advocate Commissioner?”

11. This Court has carefully considered the submissions made on either side and the materials available on record.

12. Primarily, two main submissions were urged on the side of the appellants. The first submission is that, the appellate Court had overlooked the evidence of P.W.2, who had specifically stated that the 10 feet pathway was allowed to the plaintiff to access his property in the “A” Schedule property and this pathway was available in the “B” Schedule property that was sold to the defendant. The second submission made by the learned counsel appearing for the appellant is that the so-called alternative pathway that was pointed out by the appellate Court is from a land belonging to the Temple and as and when the owner of that land closes that pathway, the plaintiff will be left with no alternative pathway to access his property. Therefore, certainly, the easement of necessity will apply to the facts of the present case.

13. The trial Court, while rendering its findings, has relied upon the report submitted by the Advocate Commissioner and also the rough sketch, which were marked as Exs.C-1 and C-2. The trial Court has also placed reliance upon the evidence of P.W.2.

14. The trial Court, on going through the documents that was relied upon by the plaintiff, had come to a conclusion that there is no specific reference regarding the pathway in the documents. However, the trial court went by the evidence of P.W.2 in this regard.

15. The appellate Court, while reversing the findings of the trial Court, once again went through the documents and also appreciated the evidence of P.W.2. Insofar as the documents are concerned, the appellate Court came to a categorical conclusion that the document does not reflect the so called pathway available in the “B” schedule property.

16. The appellate Court, also held that P.W.2 in his evidence, has specifically stated that an alternative pathway was available to the plaintiff through a land belonging to the Temple. Apart from that, there was another alternative pathway that was identified which was through the land belonging to one Vetrivel. For this purpose, the appellate Court has placed reliance upon Ex.C1 to Ex.C.3.

17. In view of the above, the appellate Court came to a conclusion that the documents relied upon does not show the allotment of a 10 feet pathway in favour of the plaintiff in the “B” Schedule. That apart, the evidence of P.W.2 and Exs.C.1 to C.3 makes it clear that there was an alternative pathway available from the Southern side of the Karuppasamy Koil. These are factual findings rendered by the lower appellate Court.

18. Insofar as easement of necessity is concerned, where it is established that there was an alternative pathway available, this ground automatically fails. In the case on hand, the plaintiff in a way has also claimed easement by grant on the ground that the common owner while selling the property to the plaintiff and the defendant had allowed the plaintiff to use the 10 feet pathway in the “B” Schedule property belonging to the defendant. This stand taken by the plaintiff is more in the nature of easement by grant rather than easement of necessity. Insofar as easement of grant is concerned, there is no necessity to consider the availability of an alternative pathway, since the parties are bound by the grant.

19. Only in the case of easement of necessity, the issue of alternative pathway assumes significance. The plaintiff has virtually attempted to claim both easement of grant and easement of necessity in this case. Insofar as easement of grant is concerned, the documents do not support the case of the plaintiff. Insofar as the easement of necessity is concerned, the alternative pathway was available and the same has been recorded as a finding of fact by the lower appellate Court.

20. It must be borne in mind that the easement by grant and easement of necessity are mutually exclusive, since in the former, the plaintiff will claim it as a matter of right and in the later, it will be claimed as a servient owner. Useful reference can be made to the judgment reported in 2004 (4) CTC 414 in the case of Arunachalam Pillai and another Vs. Sorimuthu Pillai and also another judgment in the case of K.Krishnamoorthy Vs. Nagammal and others in S.A.No.70 of 2007 dated 18.11.2014.

21. In view of the above, this Court, exercising its jurisdiction, under Section 100 CPC, cannot once again, re-appreciate the evidence unless the finding is found to be perverse.

22. The substantial questions of law framed by this Court are answered accordingly against the appellant and this Court does not find any ground to interfere with the judgment and decree passed by the appellate Court.

23. Accordingly, this Second Appeal is dismissed. No costs.