The central legal point established in the judgment is the determination of the extent of the plaintiff's easementary right for passage over the defendant's property, based on the oral and documentary evidence.

The second appeal has been filed against the concurrent findings of fact.

2. The suit is filed for bare injunction for pathway of 5 ½ feet as per the plaint plan ABCD on the northern side of the defendant's property. The Trial Court after considering the oral and documentary evidence,decreed the suit. Against that, appeal was filed before the Appellate Court and the Appellate Court confirmed the finding of the trial Court. In the meanwhile, the defendant put up construction in the plot and therefore the plaint was amended for mandatory injunction and the Appellate Court granted mandatory injunction. Against that, the present second appeal has been filed by the defendant.

3. At the time of admission of the second appeal, the following substantial question of law was framed.

" Whether on the facts and circumstances of the case the suit is barred by res judicata or under Order 2 Rule 2 C.P.C.?

4.The learned counsel for the appellant submitted that the alleged pathway is not in existence at all and there was no easement of necessity for the plaintiff and hence the trial Court as well as the appellate Court erred in law in decreeing the suit. He also referred to various documents including Commissioner's report. From the Commissioner's report, it is seen that the space pathway is on the eastern side of the defendant's property,in that,a door way was facing east as well as north. It appears that the plaintiff was using this vacant space of defendant, when it was kept vacant. But it is to be seen that the property is only 13 feet width in the front. Out of this, the right of pathway 5'6" is claimed by the plaintiff. Further the appellate Court relied upon Ex A3 which was the sanctioned plan obtained by the appellant herein. In that, there is a vacant space left on the northern portion . From this, the lower appellate court has come to the conclusion that the "pathway" has been left open only because of the right of the plaintiff over the property. This is not acceptable since Ex A3 does not show any door way on the western side or northern side of the appellant's property and that was taken into account by both the Courts below to hold that the plaintiff had a pathway way over the appellant's property. The trial Court as well as the first appellate Court have relied upon the oral evidence adduced by the plaintiff and accepted the evidence of plaintiff but disbelieved the evidence adduced by D.Ws 1 to 4. From that both court below concurrently found that there was an easementary right prescribed by the plaintiff over the property of this appellant. This right appears to be for ingress and egress or right of passage. In that case,the plaintiff is entitled only to the passage, namely the right to reach Nanjundapuram Road from his house through his door on the western side, for that, utmost 3 feet width may be required for a person to reach the place. Since it is not an easement of necessity easementary right cannot be exercised over the entire property; only a maximum 3 feet width can be allowed on the northern extremity of the appellant's property. As per the Commissioner's plan, it is seen at the point "B", 1 ½ feet is left by this appellant; that therefore 1 ½ feet must be increased to 3 feet and the defendant shall maintain 3 feet as vacant space on the northern side and that therefore the plaintiff can reach the Nanjundapuram road, thereby he can exercise his easementary right.

5. The second appeal is partly allowed with the above modification. Considering the facts and circumstances of the case the parties shall bear their respective costs.