JUDGMENT: Aggrieved by the judgment and decree dated 20.7.1992 passed in A.S.No.17 of 1992 on the file of the Subordinate Court, Namakkal reversing the judgment and decree dated 20.8.1991 made in O.S.No.568 of 1985 on the file of the Additional District Munsif Court, Namakkal, the defendant has come forward with this second appeal.

2. The case of the plaintiff, in-brief, is as follows:

On 24.3.1960, the father of the first plaintiff has settled the entire lands in S.No.122/1, 122/9 and a half in S.No.122/2 to the plaintiffs through a settlement deed and the plaintiffs have been enjoying the same. Entire lands in S.Nos.122/3, 4, 5, 6, 7, 8 and a half in S.No.122/2 are entitled to the husband of the defendant. There is a Well in the southern west corner in S.No.122/2. On the north and upper side of the land in S.No.122, there is a river canal. On the southern side of the above said well, there is a pathway which leads to the land of the husband of the first defendant. The land in S.No.122/1, which is shown as P P1, belonging to the plaintiffs. Prior to the purchase of the land in S.No.125/7 by the defendant, she asked for a pathway in the land, which is shown as P, of the plaintiffs. Since the plaintiffs denied to heed the request of the defendant, she threatened the plaintiffs that she would write in her sale deed to the effect that there is a pathway in the ‘P’ portion of the land. Therefore, the first plaintiff sent a notice dated 30.11.1984 to the defendant, which was returned. However, the attempt of the defendant to make a pathway was thwarted by the plaintiffs on 29.6.1985. Since there is a continuous threat, the plaintiffs have filed a suit for declaration and permanent injunction against the defendant.

3. Denying all the averments made in the plaint, the defendant filed a written statement stating that since the defendants have been enjoying the pathway to the land in S.No.125/7 for more than 50 years against the others interest, the defendant is entitled to easementary right in the said pathway.

4. The second appeal was admitted on the following substantial question of law.

“Whether the judgment of the lower appellate Court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law?”

5. The relief sought for by the plaintiff is that a pathway, which is running from northern side of EJ point (in S.No.122/1) from northern side and leads to the land of ‘P’ towards the southern side, is to be declared as a separate pathway to the plaintiff and consequential relief of injunction.

6. The case of the defendant is that the said pathway, for which the plaintiff seeks for declaration, which is meant for reaching the land of defendant.

7. It is stated by the defendant that she not only claimed the right to use the pathway to reach her property which is situated adjacent to the plaintiffs’ property on the southern side, but also the easementary right which had been enjoyed by the vendors of the defendant for a long time. In such circumstances, the defendant would contend that the pathway which is lying on the land of the plaintiffs from north to south is a passage not only meant for the exclusive use of the plaintiff but also to the defendant as well as other persons.

8. With regard to the claim of declaration in respect of that pathway and consequential relief of injunction, whatever the averments referred to in the plaint, the plaintiffs reiterated the same, while adducing evidence before the trial Court.

9. It is stated by the plaintiffs that there is no easementary right which has been exercised and used by the defendant as well as her vendor. In support of his claim, the plaintiff has produced certain documents, namely, Exs.A-1 and A-2. Apart from this, the plaintiffs have not produced any other documentary evidence to establish that they have got exclusive right over the pathway, which is lying from EJ point running towards south through the land marked as P.

10. To disprove

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