Second appellate court cannot entertain any argument advanced outside substantial question of law.

(Second Appeal filed under Section 100 of Code of Civil Procedure, against the decree and judgment of the learned Subordinate Judge, Namakkal, in A.S.No.131 of 1993 dated 6.2.1995, confirming that of the learned District Munsif, Namakkal in O.S.No.876 of 1989 dated 28.4.1993.)

The unsuccessful defendants, having lost before the Courts below, preferred this second appeal. The sole plaintiff died pending second appeal and his legal representatives were impleaded as respondents 2 to 4 as per the orders of this Court dated 23.2.1996.

2. The brief facts leading to filing of the original suit are that the deceased plaintiff purchased the suit property on 23.6.1965 for valid consideration from one Ramasamy Gounder's wife Veerammal and her sons Kuppusamy and Perumal, and eversince the date of purchase, he was in absolute possession and enjoyment of the same. The adjacent land belongs to one Vellaiyan @ Karuppanna Gounder, elder brother of the first respondent. Next to that, lies the land of defendants, on the southern and eastern side of plaintiff's land. The specific case of the plaintiff is that he is the absolute owner of the suit property, enjoying the same by raising groundnut crops. Such being the case, the plaintiff alleged that on 15.10.1989 the defendants attempted to lay a pathway in the land of the plaintiff by destroying the crops stood therein. Hence the suit was filed for permanent injunction restraining the defendants from in any manner interfering with the peaceful possession and enjoyment of the suit property.

3. In the written statement filed by the defendants, all the allegations raised in the plaint are denied. The defendants purchased the entire land in S.No.310 and an extent of 2.93 acres in S.No.308 of Ramadevan Village from their previous owners in the year 1978 and 1979 respectively and are enjoying the same. According to the defendants, the said lands have access only through the suit pathway; that the defendants and their predecessors were using the suit pathway for the past 60 years; and that, there is no other pathway to reach their lands. Hence it is stated that the defendants have right over the pathway on the basis of easement by prescription as well as easement by necessity. The case of the defendants is that in view of the previous enmity between the plaintiff and the defendants and taking advantage of the enmity between the first defendant and his elder brother Karuppanna Gounder, the plaintiff encroached the pathway and obstructed the defendants from using the same. These facts, according to the defendants, have been clearly mentioned in the Commissioner's report. Defendants also contend that the suit is bad for non-joinder of Karuppanna Gounder as a necessary party to the suit.

4. On the basis of the plaint and written statement, the Trial Court framed two issues. The deceased plaintiff examined himself as PW-1 and two other witnesses were examined as Pws.2 and 3, besides marking Exs.A-1 to A-3. On behalf of the defendants, Dws.1 to 3 have been examined and five documents have been marked as Exs.B-1 to B-5. The Commissioner's report and plan were marked as Exs.C-1 and C-2 respectively.

5. The Trial Court found that the case of the defendants that they were using the suit pathway for the past sixty years is false and consequentially granted the relief of permanent injunction as prayed for by the plaintiff, against which, the defendants preferred appeal in A.S.No.131 of 1993 on the file of Sub Court, Namakkal.

6. The first appellate Court, after reassessing the oral and documentary evidence, could not come to a different conclusion and confirmed the decree and judgment of the Trial Court by dismissing the appeal. As against the said decree and judgment, the defendants have approached this Court by filing the present second appeal.

7. This Court, while admitting the second appeal, framed the following substantial question of law for consideration,

“Whether the Courts below are correct in not going