P. Bhavadasan, J.

The defendants in O.S.No.72 of 1993 who suffered concurrent decrees at the hands of the courts below are the appellants.

2. The parties and facts are hereinafter referred to as they are arrayed before the Trial Court.

3. The plaintiff is the owner and in absolute possession and enjoyment of the plaint A schedule property. The plaint B schedule property which belongs to the defendants is situated on the southern side. The western boundary of the plaint A schedule property is an old road. That road goes towards north from Kurumathoor to Vallikkurumbathottam. It is claimed that the road has a width of 18 feet and used by the public of the locality. The road which is shown as C schedule according to the plaintiff passes through the property owned and possessed by the defendants. It is stated that on 15.02.1993, the defendants interrupted the passage of the plaintiff through the road and threatened that he will not permit the plaintiff to use the road any more. It is stated that the plaint C schedule road is the sole means of access to the property owned and possessed by the plaintiff and he has acquired prescriptive right as well as easement by necessity to use the said road. Apprehending further mischief from the defendants, the suit was laid.

4. The defendants resisted the suit. They disputed the identity of the property scheduled in the plaint. It is pointed out that the plaint B schedule property and the adjacent properties were assigned by the Government from the surplus land surrendered by various people. They disputed the existence of C schedule road. It is pointed out that a person by name Baby residing on the northern side of the 1st defendant's property wanted to take lorry through the property of the defendants for which they were not amenable. It is at his behest that the present suit has been laid. Pointing out that the plaintiff has no manner of right over any portion of the defendants' property for their egress and ingress to plaint A schedule property, they prayed for a dismissal of the suit.

5. On the above pleadings issues were raised. The evidence consists of the testimony of PWs.1 to 7 and document marked as Ext.A1 from the side of the plaintiff. The defendants had DWs.1 to 5 examined and documents B1 to B4 marked. Exts.C1 to C7 are the Commissioner's report and plan. Exts. XI to X4 are the third party Exts.

6. On an appreciation of the evidence in the case, the Trial Court came to the conclusion that the plaintiff has miserably failed to establish the plea of prescriptive right of easement but then found that the plaintiff is entitled to relief on the basis of easement by necessity and accordingly granted a decree in favour of the plaintiff. The aggrieved defendants carried the matter in appeal as A.S.No.16 of 1994. The appellate court concurred with the findings of the Trial Court and dismissed the appeal. Hence the second appeal.

7. Notice is seen issued on the following questions of law:

a. whether a person can claim casement over a road which is admittedly used by the public at the locality? What is the difference between the easementary right and public right?

b. Whether the mere averment that the particular road is absolutely necessary in itself constitute a plea of easement of necessity ? What is the manner and method of pleading and proof in a case of easement of necessity ?

c. What are the characteristics of the alternate way, so as to constitute a defence to the claim of easement of necessity? Is it correct to say that merely because the alternate way is not a public way, it is not an alternate way at all ?

d. Can there be an easement of necessity when there is servient heritage and no governance of tenements?

e. What is the correct perspective to be adopted in deciding the question of identity when the plaint schedule and commissioner's reports contradict each other and when those are vague and uncertain ?

8. As could he noticed from the above statement of facts the dispute in this ca