Failure to prove easement by prescription under Section 15 of the Indian Easements Act led to the dismissal of the suit seeking mandatory injunction.

This second appeal is focussed by the plaintiff, animadverting upon the judgment and decree dated 210. 2006 passed in A.S.No.37 of 2006 by the Sub-Court, Nagapattinam, confirming the judgment and decree dated 14. 2006 passed by the District Munsif, Nagapattinam, in O.S.No.12 of 2003, which was filed for mandatory injunction.

2. The appellant herein as plaintiff filed the suit O.S.No.12 of 2003 seeking mandatory injunction to remove the construction put up by the defendants in the suit pathway and also to restrain the defendants from interfering with the use of the pathway by the plaintiff on the main ground that ever since he acquired the property, to the East of the suit pathway, he has been using it for ingress and egress to his property and that his predecessor in title, namely, his vendor also was using the same.

3. Whereas the defendants entered appearance and resisted the suit by filing written statement remonstrating and refuting the allegations in the plaint and also pointing out the rebarbative and antipathetical attitude, which the plaintiff was emitting towards the defendants in their enjoying their own exclusive suit pathway, which forms part of their own land, as per their title deeds.

4. The trial Court framed the relevant issues. During enquiry, the plaintiff examined himself as P.W.1 along with one Rengaiyan as P.W.2 and Kaliaperumal as P.W.3 and Exs.A1 to A9 were marked. On the defendants side the first defendant examined himself as D.W.1 and Ex.B1 to B.4 were marked. Ex.C1 and Ex.C2 were marked as Court documents.

5. Ultimately, the trial Court dismissed the suit, as against which, the plaintiff preferred the appeal A.S.No.37 of 2006, which was also dismissed by the first appellate Court, confirming the judgment and decree of the trial Court.

6. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, the plaintiff preferred this second appeal on various grounds and also suggesting the following substantial questions of law:

"a) Whether the non-consideration of Ex.C2(Plan) in which Advocate Commissioner mentioned that in the suit land 2 feet come under appellants Survey No.96/8 and > feet alone come under the respondents survey No.96/7 so dismissing the suit claim by both the Courts below is valid in law?

b) When the Advocate Commissioner appointed by the Court clearly mentioned that in the suit lane out of 3 feet, 2 feet come under appellant’s property. So non-decreeing the suit is valid in law?

c) When the claim of easementary right in the suit lane was negatived by both the courts below without considering sale deeds Ex.A1 and A2 and the Evidence of P.W.1 to 3 is legally correct?"

7. Heard the learned counsel for both sides.

8. The learned counsel for the plaintiff would reiterate the grounds as found set out in the memorandum of second appeal. Whereas, the learned counsel for the defendants would appropriately and correctly put forth his argument to the effect that the trial Court in its judgment pointed out that P.W.2-the vendor of the plaintiff admitted in unequivocal and unambiguous terms that he himself was not using the suit pathway, but on the other hand he was having ingress and egress to the property, which was sold by him to the plaintiff, directly from the Road situated to the North of the said property. As such, the very admission of P.W.2-the vendor of the plaintiff proved fatal to the case of the plaintiff.

9. It is also in evidence that from the road situated to the North of the plaintiffs property, the plaintiff is having directly ingress and egress to his property and his vendor also was using the same. However, certain shops have been built, abetting the said Northern side road and despite such construction of shops, the plaintiff has been some portion abetting the Northern side road for having ingress and egress to the back portion of his residential area. The plaintiff cannot artificially create obstacle for himself and claim as of necessity to u