Implied grant when deducible.

The defendant is the appellant. The suit was for declaration of the plaintiff-respondent’s title to the suit item, and for injunction restraining the appellant from interfering with the respondent’s peaceful possession of the suit property.

2. On 30th June, 1958, the respondent-plaintiff purchased the suit property and has been in possession and enjoyment thereof ever since. The suit item is of an extent of 1.52 acres in S. No. 248/2-B, Chikkavasampalayam village. On 12th May, 1964 the defendant trespassed into the same and attempted to lay a road 30-feet wide. On these allegations, the respondent brought the suit for the said reliefs.

3. The appellant-defendant contended that originally S.No. 248/2-B, of an extent of 2.06 acres, which was divided into a number of house-sites, belonged to one Subbiah Chetti. He left space for a road for giving access to the house-sites. On 1st May, 1945 he sold seven sites to one Guruswami Naicker, specifically mentioning a 30-feet road on the south of the sites. On 29th October, 1962 Guruswami Naicker sold the entire property to one Thirumakkal, the mother of the defendant, and, in a partition made on 15th May, 1963 this was allotted to the defendant. The remaining plots were sold by Subbiah Chetti to the plaintiff on 30th June, 1958. This 30-feet road is demarcated by masonry basement wall. In 1952, Thirumakkal applied to the Municipality for construction of a building in the first block, showing the layout of the road. The plaintiff and his predecessors were using the road as access to their plots. While the defendant wanted to re-lay the road, the plaintiff obstructed it. There is no other access to the remaining plots of the defendant. The original vendor himself lost his title to the 30-feet road since 1945. Now, the plaintiff cannot claim any right in this road. All the owners of the plots abutting the 30-feet road are entitled to this 30-feet road. By the grant of the original owner, this has become the common property of the owners of the sites abutting the road. The defendant has also perfected his right by prescription.

4. The trial Court held that the defendant has acquired the right to use the road, that the vendor of the plaintiff had divested himself of his right over the road and that the plaintiff cannot claim any title thereto. He also found that the defendant has perfected right to it by prescription. On this view, the trial Court dismissed the suit.

5. On appeal, the Subordinate Judge, Coimbatore, on a consideration of the documents, held that the plot covered by the proposed road was not sold to the predecessor-in-interest of the defendant, that there was also nothing to show grant of an easement right to use the 30-feet road, given to the predecessor-in-interest of the defendant and that it was for the defendant to provide access to the vacant site through his own site. The lower appellate Court has also observed that Subbiah Chetti might have left out a 30-feet road, that “there is nothing to show that the 30-feet road was left for the benefit of the property sold to the defendant’s predecessor-in-interest” and that “the idea to leave 30-feet road was to benefit only the remaining portion”. The lower appellate Court has also observed that road had not been formed, that the said sites were not intended to be north-to-south sites to which access could be had from the said 30-feet road, that there were east-to-west sites with access from the main road and that the defendant could not convert them into north-to-south sites and claim the road. It has been further held that it is not possible to hold that the plaintiff should be restrained from preventing the defendant from using the said road in question. On these observations and findings, the lower appellate Court allowed the appeal and decreed the suit as prayed for.

6. Aggrieved by the judgment and decree of the lower appellate Court, the defendant has preferred this second appeal.

7. Thiru D. Ramaswami Ayyangar, the