When a right of easement is claimed pleadings should be precise.

The defendants in O.S.No.60 of 1984 on the file of the II Additional Sub Judge, Erode, are the appellants herein.

2. The respondent/plaintiff filed a suit for declaration of his right to use the suit cart track and consequential injunction restraining the defendants from interfering with the plaintiffs user of the suit cart track. The trial court dismissed the suit. However, in the appeal in A.S.No.95 of 1987 on the file of the Principal District Judge of Periyar District at Erode, the first appellate Judge reversed the order of dismissal of the suit, allowed the appeal and decreed the suit in favour of the plaintiff. Hence, this second appeal by the defendants.

3. During the pendency of the appeal, the first appellant/first defendant died. Therefore, a memo has been filed by the counsel for the appellants stating that since the second appellant is the son and only legal representative of the first appellant, the said fact may be recorded by this Court and necessary orders may be passed. Accordingly, the second appellant being the legal representative of the first appellant is permitted to prosecute the appeal.

4. At the timeof admission, this Court formulated the following substantial questions of law:

.• (1) Whether the court below was right in granting a decree on facts contrary and inconsistent with the pleadings and the testimony of the respondent/plaintiffe

.• (2) Whether the lower appellate court was right in granting a decree based on assumed easementary rights of the respondent over a portion of the suit cart track as BC in Ex.A-1 even in the absence of any pleadings therefor and contrary to the testimony of the respondente

.• (3) Whether the court below was right in granting a decree to the respondent on an alleged long user over the statutory period by the respondent and thereby securing a right by prescription brushing aside the positive testimony of the respondent that he did not lay any claim to any portion of the cart-track passing through the patta lands of the appellantse

5. Inelaboration of the above substantial questions of law, the arguments were advanced by both the counsel for the parties.

6. I have carefully considered the rival contentions and perused the records.

.7. The case of the plaintiff is this:

.“The plaintiff is the owner of the northern portion of S.F.No.109 of Thindal Village and the defendants are the owners of the southern portion of S.F.No.109. The plaintiff, the defendants and others have to reach their respective lands along the suit cart track which is situated in Government poromboke. Except the suit cart track, there is no other cart track for the plaintiff to reach his land in S.F.No.109 from his village. The plaintiff and his predecessors-in-title have been using the suit cart track from time immemorial and therefore, the plaintiff has perfected his right of easement by way of prescription and also of necessity. Since the defendants are now denying the easement right of the plaintiff in the suit cart track, the plaintiff filed the suit.”

.8. Thecase of the defendants is as follows:

.“The suit cart track is situated in the patta land S.F.No.109 belonging to the defendants and not in the poromboke. Though the cart track A to B and C to D situated in the poromboke land, the suit Cart track which relates to the portion BC in the plaint plan is situated in S.F.No.109 belonging to the defendants. The plaintiff and his predecessors-in-title have not used the suit cart track from time immemorial. The suit cart track was put by the defendants in their own patta land to reach their land only 4 years ago. Therefore, the suit is liable to be dismissed”.

9. As indicated earlier, though the trial court dismissed the suit, the lower appellate court granted decree holding that the plaintiff would be entitled to the declaration and injunction mainly on the ground that the portion BC, the connecting cart track with the other portions, is a well-defined pathway and which would ind