Commissioners report regarding physical features can not be a ground for claiming right of pathway.

This second appeal has been filed against the judgment and decree dated 24.01.1990, in A.S.No.21 of 1987, on the file of the Court of Subordinate Judge, Tenkasi, reversing the Judgment and decree in O.S.No.520 of 1981 dated 29.08.1986, on the file of the District Munsif, Ambasamudram.

2. The plaintiff filed a suit for a declaration that pathway referred to in the plaint as BEFGC as a common pathway and consequentially for permanent injunction not to interfere with the plaintiff's use of the pathway. The case of the defendants is that it is not a common pathway but it is exclusive property of the defendants. On the basis of the evidence adduced, the trial Court found that the property referred as BEFGC is not a common pathway and dismissed the suit On appeal, the first appellate court reversed the Judgment of the trial Court and decreed the suit as prayed for.

3. Aggrieved against the Judgment and Decree of the first appellate court, this second appeal has been filed. The substantial question of law framed in this second appeal is as follows:

"Whether the decree of the lower appellate Court is legally sustainable in the light of the recitals in Ex.A.1 and the admission of P.W.1 that no right of way is given to him under Ex.A.1 and even the measurements of the suit II Schedule property are not given thereunder?"

4. The learned counsel appearing for the appellant submitted that the appellate Court had come to the conclusion that it is a common pathway, on the basis of the recital in the documents of the defendants to which the plaintiff was not a party. Further the appellate Court relied only on the Commissioner's report and found the pathway as common pathway.

5. The trial Court has found that the plaintiff claims ownership in the second schedule property (the pathway); he is not asking for easementary right over this property. The trial Court has found that the plaintiff's father who had purchased the schedule-1 of the suit property by the sale deed Ex.A.1 dated 29.10.1931 from Sankaravadivammal. The suit pathway, (the suit second schedule property) is referred to in Ex.B.2 as ABCD. The partition deed between the plaintiff and his brothers and father is Ex.A.3. In Ex.A.1, the second schedule property is not included. Further the second schedule property has not been conveyed to anyone in the partition deed Ex.A.3; No one has been given the right of pathway over this second schedule property. In Ex.A.1, the second schedule suit property is shown as Western boundary of the property conveyed and it is referred to as "v';fs; tifawh bghJeil ghijf;F fpHf;F". It is also admitted by the plaintiff that in Ex.A.1, it is not stated that the right of pathway is granted over second schedule property.

6. From the admission of the plaintiff, the trial Court found that over the second schedule property neither the plaintiff nor his father had any interest. In the plaint also, the plaintiff has not stated that he claims ownership in the second schedule property. But, he claims only the right of pathway over the property. Further the first defendant's father had purchased by a sale deed dated 01.01.1945, the property in second schedule from Pondikannu Pillai, S/o. Ramalingam Pillai. When the plaintiff claims easementary right, he must admit that it is the property of another person. When he claims ownership on the same property, he cannot claim easementary right. But, the plaintiff has admitted that his claim is only for ownership and not for easementary right. Therefore, the plaintiff must prove ownership. But, the documents filed on the side of the plaintiff does not refer to the pathway; it has not been referred even in the partition deed. The trial Court found that the plaintiff failed to prove their case and hence dismissed the suit.

7. The appellate Court reversed the finding of the trial Court on the ground that the dismissal of the suit for the inconsistent plea in the plaint is not sustainable. It held that the plaintiff sought f