Section 13 of the Easements Act comes into play only in case of necessity, and the party claiming easementary rights must prove exclusive use of the passage.

This second appeal has been filed against the judgment and decree, dated 112. 1994, made in A.S.No.6 of 1993, on the file of the Subordinate Judge, Ranipet, confirming the judgment and decree, dated 212. 1992, made in O.S.No.442 of 1989, on the file of the District Munsif Court, Ranipet.

2. The plaintiff in the suit, in O.S.No.442 of 1989, is the appellant in the present second appeal. The defendants in the said suit are the respondents herein. The suit had been filed by the plaintiff praying for the relief of declaration of title and for permanent injunction. The plaintiff had stated that the suit property is his absolute property. He had got it under an oral partition between the plaintiff and the defendants and one Kannan, who is the brother of both the plaintiff and the defendants, in or about the year, 1975. Thereafter, the plaintiff had constructed a tiled house in the schedule property and he has been enjoying the remaining portion of the said property, as a vacant site. As such, the brothers of the plaintiff have no right or title or interest over the schedule property.

3. The defendants had sold the adjacent vacant site, which they had got under the oral partition, to one Kalidoss, by a registered sale deed, dated 24. 1980. They had repurchased the said property from Kalidoss and his minor sons, by a registered sale deed, dated 29. 1981. Accordingly, they have been in possession and enjoyment of the said property, which is a vacant site. While so, the defendants had been attempting to trespass into the suit scheduled property, from 7. 1989 onwards. They had also threatened to demolish the house constructed by the plaintiff in the said property taking advantage of the fact that the plaintiff is very old and sick. In such circumstances, the plaintiff had filed the suit, in O.S.No.442 of 1989, praying for the relief for declaration of his title, in respect of the suit property and for permanent injunction, restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property.

4. In the written statement filed on behalf of the defendants it has been stated that it is not correct on the part of the plaintiff to state that the suit property belongs to him, absolutely. His claim that the suit property was allotted to him under an oral partition is incorrect. The suit property is an ancestral property and since there is no specific allotment of the property to any one it forms a part of the common ancestral property belonging to the plaintiff, as well as the defendants. The defendants had further stated that the schedule mentioned property had been used in common by all the brothers, even though the plaintiff had constructed a house in a portion of the said property. The remaining vacant portion of the property has been used as a passage both by the defendants, as well as the plaintiff, to reach their house. The defendants have no other way except through the vacant portion of the suit schedule property. The vacant portion of the property has been used in common by the defendants, as a passage, for several decades.

5. It has been further stated that due to the differences that had arisen between the plaintiff and the defendants, the plaintiff had started to dig for the laying of a foundation to raise a wall over the passage in order to block it. The plaintiff has falsely stated that the defendants had threatened to demolish the house that had been constructed by him in a portion of the suit property. Further, the defendants had not committed any trespass into the plaintiffs property, as alleged. The sale of the property belonging to the defendants to one Kalidoss and the subsequent purchase of the property by the defendants has nothing to do with the suit schedule property. Since the defendants have been using the common passage for many years they have easementary right over the said passage. In such circumstances, the suit filed by the plaintiff, praying for declaration of t