A right of way over a road is not an apparent and continuous easement and therefore cannot be regarded as an easement of qualified necessity or a quasi easement.

MANOHAR PERSHAD, J.

( 1 ) S. A. No. 85 of 1957, on behalf of the defendants is directed against the judgment and decree of the Subordinate Judge of Anantapur dated 26/02/1957, allowing the appeal and decreeing the suit of the plaintiff respondent, for a declaration of his right to the use of the cart tracks A B C D and A B C E in the plaint plan and for a permanent injunction restraining the defendants from interfering with the respondents user of the above siad cart tracks, which was dismissed by the District Munsif.

( 2 ) THE facts which given rise to this appeal are: The appellants and the respondent are residents of Konapuram Village in Kalyandurg Taluk and are closely related to each other. The respondent is the owner of plot P in Cherlothota shown in the plaint plan. The way to this field is through G. A. B. C. D. in the plaint plan and at point C the way bifurcates; the C E is used for taking carts to Cherlothota. All the sharers of Cherlothota have been using the said track for taking their carts to Cherlothota as well as to Paduthota and other fields to the west and the respondent and his predecessors have been using the cart track form time immemorial without any obstruction from anybody. Originally, the respondents branch and the appellants branch belonged to a joint family at which time all the lands were held joint and about 30 years ago during the life time of the respondents father, a division of the family property took place and the appellants branch got the fields S. No. 366-1/a, 367-1/a and 367-1/-C and the right to use the cart track was recognised for the benefit of all the sharers and all the sharers have been using the said track even after the partition. The appellants denied this right of the rerspondent and hence the present suit for declaration.

( 3 ) IN the plaint, it also stated that apart from the route G A B C D, thereis another cart track. f E D shown in the plaint plan, which runs through salinefields and is unusablefor a mjor portion of theyear as it would bewater-logged.

( 4 ) THE first appellant who was thefirst defendant in the trial Court in his written statement denied that the rerspondent had nay right of way either along G A B C D or G A B C E in the plaint plan and also that the path C E ever existed and stated that the usual cart track to Cherlothota and beyond from Kondapuram village was across the tank bund viz. , F E D route running through lands not occupied by others and not under cultivation. It was further averred that there had never been any objection for the use of that a pathway by any one. While admitting that a small portion of it was marshy during rains, he stated that it could beset right by putting a little gravel or stone. The defendant inter alia denied that both G A B C D and G A B C E were ever used from time immemorial. The other appellants adopted the written statement of the first appellant.

( 5 ) THE following five issues were framed by the District Munsif: 1. Has the plaintiff prescribed his right to the user of the cart tracks A B C D and A B C E shown in the plaint plan by enjoyment of the samefor over twenty years? 2. Has the plaintiff acquired any such right by easement of necessity? 3. Is the cart track F E D noted in the plaint plan, the usual rastha used by the plaintiff, for proceeding to his field, as contended by the defendants? 4. Is the plaintiff entitled to injunction asked for? 5. To what relief is the plaintiff entitled?

( 6 ) THE respondent examined three witnesses and marked Exs. A-1 to A-8, while the appellants produced three witnesses and filed two documents, Exs. B-1 and B-2. The District Munsif found that the respondent had not acquired a right to use the cart track A B C D and A B C E, either by prescription or easement of necessity. He further found that the usual cart track for the respondent to take his carats to his land was F E D route. In the result, the District Munsif dismissed the suit. On appeal by the respondent, the appellate Co

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