Right to use suit pathway lost due to availability of alternative pathway.

M. KARPAGAVINAYAGAM, J.

( 1 ) THE appellants are the unsuccessful defendants in o. S. No. 227 of 1978 on the file of the district Munsif court filed by the plaintiff/ respondent for declaration, mandatory injunction and consequential relief of permanent injunction. They have filed the Second appeal after having lost in both the courts below.

( 2 ) THE case of the plaintiff is. this. The plaintiff has got a land bearing R. S. . No. 412/ 1 (a ). The pathway marked as A B C runs in between the patta lands and terminates in the lands bearing R. S. Nos. 413 and 412/l (a ). The pathway has been in existence from time immemorialand the plaintiff had the origin in last grant. The suit pathway has been recited in the sale deed by which the plaintiff purchased R. S. No. 412/1 (a), and also in the partition deed by which the properties were allotted to the defendants. Due to enmity, the defendants highhandedly caused obstruction at point. c by putting up thorny fences. Hence, the plaintiff prayed in the suit for a declaration that the plaintiff is entitled to right of access to his field S. F. No. 412/1a through the pathway A B C, to direct the defendants by mandatory injunction to remove the obstruction at point c and to restrain them by permanent injunction from interfering with the user of the pathway A B C by plaintiff for access to his field S. F. No, 412/1a. The defendants resisted the suit by putting forward the case-which is as follows; The pathway BC is part and parcel of the land of the defendants 1 and 2. The plaintiff is not entitled to any pathway right in the lands of the defendants much less the alleged suit pathway. The plaintiff has not reserved or claimed any pathway right in S. F. 458, 449 and 411 to reach his land in R,s. No. 412/1 (a ). The plaintiff has purchased north south cart track from one karuppanna Gounder under a registered sale deed dated 6. 11. 1971 to reach his land from the southern east west poramboke pathway. As such, the suit is liable to be dismissed.

( 3 ) AFTER trial, on consideration of the materials placed by both the parties, the lower court decreed the suit granting the reliefs sought for.

( 4 ) AS against this judgment and decree, the defendants filed an appeal before the First appellate court in A. S. No. 163 of 1980: namely the court of Subordinate Judge, Karur. The lower appellate court has well considered the submissions and the records, concurred with the judgment and decree passed by the lower court and dismissed the appeal. Hence, this Second Appeal.

( 5 ) MRS. P. Bagyalakshmi, the learned counsel appearing for the appellants herein, while elaborating the substantial questions of law formulated at the time of admission of the appeal, contended that both the courts below committed a grave error in holding that the plaintiff is entitled to the reliefs sought for in the suit by omitting to advert to a vital piece of evidence relating to the availability of the alternative pathway for plaintiff to reach his land. It is also contended that when the defendants/appellants herein,proved through Ex. b 2, the sale deed executed in favour, of the plaintiff which would show the alternative pathway, both the courts below have not properly appreciated the evidence adduced by the defendants and have come to the hasty conclusion that the plaintiff has made out a case. In support of her submission, she cited sufficient authorities with reference to the legal position relating to the easement of necessity.

( 6 ) ON the other hand, in support and justification of the judgments and decrees passed by the courts below, Mr. V. Venkatasamy counsel for the respondent/plaintiff would contend that the claim for the easementary right is only on the basis of grant, which was satisfactorily proved by the evidence of witnesses produced on behalf of the plaintiff through oral and documentary inclusive of Ex. A1 and A3 and that it was also held by both the courts below that there is no evidence for alter