The central legal point established is that the claim for easementary right must be supported by evidence of actual existence and use of the alleged easement, and absence of such evidence can lead to dismissal of the claim.

This second appeal has been preferred against the decree and judgment in A.S.No.2/1995 on the file of the Court of the Principal District Judge, Erode. The plaintiff, who has lost his case before both the court below, is the appellant herein.

2. The averments in the plaint relevant for the purpose of deciding this appeal are as follows:-

2(a) The suit is for declaration of the plaintiffs easementary right to use the suit cart track for taking carts, lorries, men etc., from their land in resurvey No.306/4 and from the road in the south to their lands in resurvey No.307 of Pudur village and morefully set out in the schedule hereunder and shown in the red colour in the plaint plan and for consequential permanent injunction. The plaintiffs are brothers. They are owners of a portion of old S.F.No.288 of Pudur village and the land is called "Villiampallam". The total extent of Valliampallam land is 10.37 acres. The plaintiffs paternal grand mother was entitled to a half share in the said survey number 288 to an extent of 5.18 ½ acres. On 010. 1954 the plaintiffs grand mother Velayammal executed a Will while in a sound disposing state of mind bequeathing her 5.18 ½ acres to the plaintiffs herein. The Will was also duly registered as document No.47 of 1954. The said Velayammal died in or about the year 1965. The plaintiffs became entitled to the said 5.18 ½ acres.

2(b) The defendant is the son of Kaliappa Gounder. The said Kaliappa Gounder filed a suit in O.S.No.430 of 1959 on the file of this Court for declaring his right to his specific portion in the lands and S.F.No.288 was the first item. He also claimed the relief of injunction. He had filed a plan with the suit. The certified copy of plaint with plan in O.S.No.430 of 1959 on the file of this Court, is also filed. The said suit was decreed and the appeal was dismissed.

2(c) The said Kaliappa Gounder had pleaded a prior oral partition in which he contended inter alia that he was entitled to the portions marked in red in the plan. He had also mentioned therein the portions in possession of the plaintiffs grand mother Velayammal. There is an East West road leading from Vellalapalayam to Chettipalayam which was previously an iteri and has become full fledged road. The plaintiffs grand mother was in possession and enjoyment of the land. She had been reaching her lands in the North, through Nort South cart track from the road on the South. The said cart track is above 15 feet broad and has been used by the said Velayammal from time immemorial. In 1959 the said Velayammal was having a chalai which has been removed and it is now vacant land. The said Velayammal was having lands East of the said Kaliappa Gounders land. The said Velayammal has been reaching her chalai and lands from her land on the East through the road on the South and along 15 feet cart track mentioned above. The said 15 feet North South cart track is the subject matter of this Suit. The suit cart track is marked in red colour in the plaint plan which may be treated as part and parcel of this plaint.

2(d) There has been resurvey and the land of the plaintiffs which originally belonged to the said Velayammal bearing S.F.No.306/4 and 307 of Pudur Village. The survey numbers are also indicated in the plan enclosed herewith. The suit cart track runs at the western end of old S.F.No.288. After resurvey it is in resurvey number 306/3. It has been allotted to the defendant herein in their family partition.

2(e) The plaintiffs state that they are entitled to use the cart track as an easement of necessity. The plaintiffs have no other access to reach their lands in resurvey number 307 from the road in the South and their land bearing 306/4. There was unity of ownership of the entire lands and the plaintiffs land cannot be enjoyed except through the suit cart tract. The plaintiffs are also entitled to use the suit cart track as an easement by prescription Velayammal and subsequent to her death the plaintiffs have been