Failure to prove prescriptive right to use a pathway for over 65 years led to the dismissal of the suit.

The Second Appeal has been filed against the judgment and decree, dated 7. 1993, made in A.S.No.28 of 1989, on the file of the District Court, The Nilgiris, at Ootacamund, confirming the judgment and decree, dated 8. 1989, made in O.S.No.54 of 1986, on the file of the District Munsif Court, The Nilgiris at Ootacamund.

2. The plaintiff in the suit O.S.No.54 of 1986, is the appellant in the present second appeal. The plaintiff had filed the suit before the District Munsif Court, The Nilgiris District, at Ootacamund, praying for the reliefs of declaration and permanent injunction.

.3. The brief facts of the case, as stated by the plaintiff, are as follows:

.The plaintiff and his brothers are the owners of the land and building in R.S.No.1752 measuring 18-3/8. The plaintiff and his brothers had purchased the said property in the year, 1966, and when they purchased the said property, there were buildings on it some of which were over one hundred years old. The plaintiff had demolished some of the existing buildings and constructed some buildings in the said property. The eastern boundary of the property is the lands in R.S.Nos.1750/1 and 1750/2.

.4. The above mentioned lands in Survey No.1750 belonged to the Government. The Government had assigned the lands in Survey No.1750/2 to the Co-operative Printing Press and in the land in Survey No.1750/1, a Petrol Bunk is in existence. On the western end of Survey Nos.1750/1 and 1750/2 and on the eastern boundary of Survey No.1752, there is a pathway about 20 feet. The plaintiff and his brothers were using the pathway to have access to their property belonging to them. The plaintiff and his brothers and their predecessor-in-interest as well as the plaintiffs tenants have been using ABCD pathway, shown in the sketch filed along with the plaint, for over 65 years. Due to the long usage of the suit pathway by the plaintiff and his brothers and their predecessor-in-interest as well as the plaintiffs tenants, the plaintiff and his men have the right by prescription to use the said pathway as well as the right of easement by necessity.

5. The plaintiff had access to his properties only through the suit pathway, as there was no alternate pathway available for the use of the plaintiff. Since the Special Officer in charge of the defendant Press is attempting to block the passage of the plaintiff, the suit had been filed.

6. In the written statement filed on behalf of the defendant, it has been stated that the plaintiff had not filed any sale deed, along with the plaint, for an extent of 45 cents in Survey No.1750/2 belonging to the defendant Press. On 31. 1972, the Government had allotted a portion of the land to the defendant Press, as the Government was the owner of the said property and no one else was having any right in the said property.

7. The claim of the plaintiff that the pathway about 20 feet in width marked as ABCD in the sketch filed along with the plaint has been under the usage of the plaintiff for more than 65 years is false. There was no such pathway through the property belonging to the defendant. Before the year, 1966, there were no buildings at the said place and the claim of the plaintiff that he and his predecessors-in-title as well as the plaintiffs tenants have been using the said pathway is false. Therefore, the plaintiff is not entitled to any prescriptive right to use the said pathway. Since the plaintiff has access to his property from Commercial Road, there is no need for the plaintiff to use the pathway in the property belonging to the defendant. Further, the Special Officer of the defendant Press had never stated that he would block the pathway at the place marked as AB. In such circumstances, the plaintiff is not entitled to any right of easement by necessity nor for any prescriptive right.

8. Based on the rival contentions, the trial Court had framed the following issues for consideration:

"1. Whether an extent of 0.45 cents in S.No.1750/2 was