Easement of grant is a matter of contract between parties.

(APPEAL against the judgment and decree of the Subordinate Judge's Court at Dharmapuri dated 28.07.2006 in A.S.No.52 of 2005 confirming the judgment and decree of the District Munsif Court at Dharmapuri dated 17.11.2004 in O.S.No.254 of 2000.)

The unsuccessful defendants in O.S.No.254 of 2000 on the file of the District Munsif Court, Dharmapuri are the appellants in the above appeal.

2. For the sake of convenience the parties are referred to as per their ranking in the suit.

3. The case of the plaintiffs is as follows:-

The lands in Survey No.307/6 of Mathemangalam village belongs to the plaintiffs. The second plaintiff purchased survey No.307/5 from the first defendant's brother-Kaveri and his son-Sakthivel under a registered sale deed dated 31.01.1994 together with the mamool pathway (suit pathway). An extent of 25 cents in Survey No.307 and a common right in the well in Survey No.307/6 and the right in the suit common pathway were purchased by the first plaintiff's father from one Periannan under a registered sale deed dated 21.05.1946 and since then he was enjoying the same and thereafter the plaintiffs are enjoying the same. The suit pathway runs west to east from the Aavarangattur road on the south of Survey No.307/4 and it reaches Survey Nos.307/5 and 307/6 and the same is being used by the plaintiffs and the defendants and earlier the same was being used by their predecessors in interest for well over 50 years as a pathway and for taking cattle and cart when no crops were raised. The suit pathway is shown as 'A,B,C,D' in the plaint plan. It is the further case of the plaintiffs that except this suit pathway there is no other convenient pathway to reach Survey Nos.307/5 and 307/6. The patta for survey No.307/4 stands in the name of the first defendant. Since the defendants are interfering with the right of the plaintiffs to use the common suit pathway a police complaint was given and a legal notice was also issued for which a reply notice was sent by the defendants containing false averments, hence the suit has been filed seeking declaration and injunction.

4. A detailed written statement has been filed by the first defendant which has been adopted by the other defendants. In the written statement the averments contained in the plaint have been denied. The defendants have denied the very existence of the suit pathway and they have pleaded that on the south of Survey Nos.307/5 and 307/6 a 'Odai Pathai' runs through Survey No.306 and the same has been sub-divided as 306/2 and further on the east of the said lands another 'Odai pathai' is there in Survey No.322 and the plaintiffs can reach their lands in Survey Nos.307/5 and 307/6 through the pathway in Survey No.306/2 and Survey No.322 and those pathways alone are being used by the plaintiffs for a long time and there is absolutely no necessity to go through the lands in Survey No.307/4 to reach their lands. They have also pleaded that the alleged cause of action is not true.

5. On the basis of the above said pleadings the trial court framed the following issues:-

(i) Whether the plaintiffs are entitled to get declaration and injunction?

(iii) To what relief the plaintiffs are entitled to?

6. During trial on the side of the plaintiffs the second plaintiff was examined as P.W.1 and one Dhanapal and Kandaswamy were examined as P.Ws.2 and 3 and Exs.A-1 to A-10 were marked and on the side of the defendants the fourth defendant was examined as D.W.1 and Ex.B-1 to B-11 were marked. The Advocate Commissioner's report and rough sketch were marked as Exs.C-1 and C-2. On a careful consideration of the oral and documentary evidence available on record and the Commissioner's report and sketch the trial court decreed the suit as prayed for. Being aggrieved by that the defendants filed A.S.No.52 of 2005 before the Sub-Court, Dharmapuri. The lower appellate court dismissed the appeal. Being aggrieved by that the above second appeal has been filed.

7. Heard Mr. P.Valliappan learned co