Normal way of life of the person claiming the right should be considered.

Second Appeal is by defendant in O.S. No.8858 of 1972, on the file of City Civil Court, Madras. The appeal was once heard, and, as per judgment dated 22. 1996, I set aside the concurrent judgments of both the courts below, and the second appeal was allowed. On that day, there was no appearance for the second respondent, and I heard the appellant alone. Thereafter, C.M.P. No.9628 of 1996 was filed to re-open the case, stating that on the date when the second appeal was heard, learned counsel for the second respondent herein could not appear, and in fact, even notice of second appeal was not served on them (respondents).

2. Since I was convinced with the reasons stated in the affidavit filed in support of that petition, I allowed the same and restored the second appeal to file. Thereafter, I heard the second appeal on merits. Learned counsel on both sides were heard.

3. Even though the plaintiffs claim various reliefs in the plaint, in this second appeal, we are concerned only with the right of easement. Reliefs 3 and 4 in the plaint read thus:

"(3) declaring that the plaintiffs are entitled to the right of pathway marked "ZYXT" in the Schedule ‘B’; and

(4) granting a permanent injunction, restraining the defendant, her agent, servants from interfering with the easementary right of pathway on the defendant’s property marked "ZYXT" in the Schedule’B’.

4. Door Nos.19 and 20 belonged to the defendant’s father. It is seen that defendant’s mother filed a suit for maintenance against her husband, and, for recovering the amount due to her, door No.19 was attached and sold in court-auction. The same was purchased by a stranger from whom plaintiffs have purchased in the year 1958. The sale deed is dated 211. 1958. It is the case of plaintiffs that Door Nos.19 and 20 are both situated on the eastern side of Pillayar Koil Street, and on the northern side, is Jones Road. Even though the plaintiffs have got access to their scavengers, the access is through Jones Road. It is averred in the plaint that passage is being used by plaintiffs and their predecessors for more than 16 years. This was obstructed by defendant by putting up a construction, it is their case that the width of the passage is 4 ft., 67 inches. But, by putting up a construction, width of the same has now been reduced to 3 ft. 6 inches. Plaintiffs wanted the defendants to be restrained by an injunction from further reducing the width of the pathway and also to declare their right of easement in respect of the entire 4 ft., 6 inches of passage. It is their case that scavengers cannot be allowed to enter through the residential portion of the building, and the passage form the northern road was being used not only by the plaintiff, but even by the sub-tenants who were occupying portions of the building. It is an easement of necessity and, therefore, the reliefs sought for have to be granted.

5. As against the said contention, in the written statement, the only contention that is taken is, in paragraph 9. The defendant only says that the plaintiffs cannot claim a right of easement, since they purchased it only in the year 1958. Defendant admitted that all these properties belonged to a common owner. Since the plaintiffs purchased the property only in the year 1958, they cannot claim easementary right. It is further said that they also cannot claim easement of necessity. It is contended that since the plaintiffs have not exercised the said right for over the statutory period without any interruption and as a matter of right, they cannot claim it as an easement of necessity.

6. Regarding easement of necessity, trial court has considered the same in paragraph 15 of the judgment. Trial court ground that even though the plaintiffs allege that the width of the pathway is 4 feet 6 inches, there is no evidence regarding the actual width, to which plaintiffs are entitled. At the time when the Commissioner visited the property, the width of the pathway was only 3 ft., 6 inch