The plaintiff has the burden of proving the existence, width, and reservation of a common passage, and the defendant is not required to prove the negative.

The first defendant in O.S. No. 298 of 1982 on the file of the District Munsif Court, Paramakudi is the appellant in this Second Appeal. The Second Appeal is directed against the judgment and decree dated 16.6.1983 made in O.S. No. 298 of 1982 on the file of the District Munsif Court Paramakudi.

2. At the time of admission, the following two substantial questions of law were framed by this Court.

1. Have not the courts below committed grievous error both on facts and in law in not considering the measurements contained in the sale deeds Exs. B.1 and A. 1 in favour of 1st defendant and plaintiffs husband and also the Commissioners reports and Plans Ex. C. 1, C. 2, C. 3 and C. 4 which would show that the plaintiffs claim is wholly unsustainable?

2. Are not the judgment of the Courts below vitiated by casting the burden wrongly on the 1st defendant when it is incumbent on the plaintiff to prove that the entirety of the suit property constituted common pathway for the use of both the parties?

3. For convenience, the parties will be referred as arrayed before the trial Court.

4. The plaintiff instituted the suit seeking for a declaration that the suit property is the common pathway for Door Nos. 3/131 and 3/130 and for consequential permanent injunction restraining the third defendant from interfering with the enjoyment of the suit common pathway and restraining the defendants from putting up any construction thereon.

5. According to the plaintiff, the suit property is common pathway, that the documents of purchase also show that the suit property is a common pathway which is used as a common pathway by the neighbours that there is no other pathway, that the suit property has been used from time immemorial, that the plaintiff and neighbours have prescribed a right, that the defendant is threatening to interfere with such right by threatening to put up construction across the common pathway and hence the suit.

6. The first defendant filed a written statement adopted by the second defendant denying the property as common passage, that the dispute portion is the exclusive property, that patta has been granted in favour of the defendants, that the defendant is entitled to put up construction of his choice, that the alienation in favour of the third defendant describing a portion of the suit property as common passage is invalid and binding, that the earlier documents also will not confer such a right and that the claim of prescription is also false and that the plaintiff is not entitled to any reliefs. It was further contended that the suit is bad for non-jointer of necessary parties and that the plaintiff is not entitled to the relief of injunction or declaration on the very pleadings.

7. The plaintiff marked Exs. A1 to A5, while the defendants marked Ex. Bl to B4. The Commissioners Plans and Reports have been marked as Exs. Cl to C4. The plaintiff has examined PW1 and 2 and the defendants examined DWs1 and 2.

8. The trial Court framed as many as seven material issues and by judgment dated 16th June 1983 decreed the suit holding that the plaintiff is entitled to easementary right of pathway and granted the consequential relief of injunction.

9. Being aggrieved the first defendant preferred A.S. No. 141 of 1983 on the file of the District Court, Ramanathapuram at Madurai. The third defendant did not prefer any appeal. The lower appellate Court by judgment and decree dated 11.1.1985 dismissed the appeal with costs. The first appellate Court also held that in the portion ABCD A shown in Ex. C2 the defendants shall not put up any construction and the same shall be used as common passage and directed Ex. C2 to be appended as part of the decree. Being aggrieved, the first defendant has preferred this Second Appeal.

10. Heard Mr. Valliappan, learned counsel for the appellant and Mr. V. Bhiman, learned counsel for the respondent.

11. According to Mr. Valliappan, there is no reason or basis to declare the entire ABCD A as common passa