Sections 25 and 26 of the Limitation Act, 1963 and the definition of “easement” in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act 1882, may for the time being extend.

1. These two Second Appeals arise out of a common judgment of the learned Additional District Judge, dated 11.4.1985 in A.S. Nos. 161 and 162 of 1984 confirming the judgment of the learned Principal District Munsif, Erode, in O.S. No. 1629 of 1980 and O.S. No. 257 of 1983 dated 6.4.1984. The plaintiffs in O.S. No. 1629 of 1980 and the defendants in O.S. No. 257 of 1983 being the same individuals, are the appellants in the above Second Appeal.

2. O.S. No. 1629 of 1980 was filed by the appellants herein contending that plaintiffs 1 and 2 are brothers, third plaintiff being the mother of plaintiffs 4 and 5 and elder sister of the sixth plaintiff. According to the plaintiffs there was a North-South itteri on the eastern side of the lands of the plaintiffs and the land of plaintiffs 1 and 2 is on the south and the lands of the plaintiffs 3 to 6 are on the North. According to the plaintiffs, there is an East-West itteri running in between these lands and there was a fence on the northern boundary of the property belonging to plaintiffs 1 and 2 which was marked as A B in the plaint plan and the said fence was in existence for more than 80 years. Plaintiffs 1 and 2 have been enjoying the lands up to this fence and there is a fence marked as C D in the plaint plan on the southern end of the land which belongs to plaintiffs 3 to 6. The said fence is also in existence for many years and Karuppanna Gounder, the husband of the third plaintiff settled that property on plaintiffs 3 to 5 under a document dated 24.1.1973. On the south eastern corner of his land, the sixth plaintiff had put up a salai and using the same for thithering his cattle. According to the plaintiffs, people used to walk through the east-west itteri and nobody has taken any carts or other vehicles through the said itteri at any time. The breadth of the itteri was 7 feet. The plaintiffs further plead that defendants 1 to 5 were owning lands on the west of the sixth plaintiff and the north of the suit itteri, and further north of it, the sixth defendant was owning lands. Further, in view of the misunderstandings, defendants 1 to 6 were taking measurement in the itteri and had planted some stones at a distance of 7 feet south of A B fence and 4 to 5 feet on the aorth of C D fence. The defendants were also proclaiming that they will demolish the existing boundary fence and encroach the cultivable lands up to the points where they have planted stones and thus widening the existing itteri. Therefore, the plaintiffs plead that the defendants had no right to do so. Hence the suit for permanent injunction to restrain the defendants from cutting or destroying the fences along A B and CD as marked in the plaint plan.

3. In the written statement filed by the second defendant the plaint plan was disputed and the width of the East-West itteri according to the defendants, was reduced into half. The defendants would further plead that it was utterly false to say that the fence along AB and CD fence have been in existence for past many years. The claim of the plaintiffs that they and their predecessors in title have been cultivating the lands up to the said fence was also incorrect. According to the defendants, the East-West cart track was in existence for reaching the lands of the defendants and it was 20 feet in broad near BD and 15-1/2 feet broad on the western end. The defendants further claim that they and their predecessors in title have been openly, continuously and uninterruptedly taking their carts through the said itteri all these years and they have perfected the said right by prescription. The defendants also plead that after the advent of the Lower Bhavani Project in view of the stagnation of water and poor maintenance the old fence had fallen into ruins and became completely extinct. About 1-1/2 years prior to the filing of the suit, dispute arose between the parties and in view of the said enmity the plaintiffs had in one night put up A B and C D fence thus encro