Plea taken by plaintiff not inconsistent.

1. The plaintiff, who had succeeded before the trial court and lost before the first appellate court is the appellant in this second appeal. This appeal is directed against the judgment and decree of the learned Additional Subordinate Judge of Tuticorin made in A.S.No.59 of 1985 in reversing the judgment of the learned District Munsif, Srivaikundam made in O.S.No.350 of 1980.

2. Heard Mr.R.Dhamodaran for the appellant and Mr.P.Peppin Fernando for the respondent.

3. At the time of admission, the following substantial question of law was framed by this Court.

“Whether the lower appellate court was justified in reversing the finding of the trial court without properly appreciating and without giving due consideration to the recitals in Ex.A-1e”

4. For convenience, the parties to this appeal will be referred as arrayed before the trial court.

5. The learned counsel for the appellant after submitting his arguments with respect to the legal contentions submitted that the appellant is choosing the alternative relief of right of easement by necessity and giving up the claim of co-ownership in respect of the disputed pathway. This election made by the counsel for the appellant is being objected to by Mr.P.Peppin Fernando, counsel for the respondent. Therefore, this Court has to consider as to whether such an election of alternative relief is permissible in this second appeal.

6. The plaintiff instituted the suit O.S.No.350 of 1980 on the file of the District Munsif Court, Srivaikundam, praying that the second schedule property is a common land of the plaintiff and the defendant and he is entitled to use the same to reach the first scheduled property and consequential relief of permanent injunction restraining the defendant from using the second schedule property. The plaintiff alternatively prayed that the plaintiff is entitled to use the second schedule as pathway and therefore, he is entitled to the relief of declaration and injunction.

7. The suit was resisted by the defendant contending that the second schedule is his exclusive property and that the plaintiff is not entitled to the relief of declaration, must less the easementary right prayed for by him.

8. After contest, the trial court granted a declaration that suit second schedule property is a common passage belonging to the plaintiff and the defendant, besides granting the relief of permanent injunction as well as mandatory injunction to remove the wall put up across the second schedule property.

9. As the trial court had upheld the plea of common passage, the defendant preferred A.S.No.59 of 1985 on the file of the Sub Court, Tuticorin. The first appellate court set aside the judgment and decree of the trial court, allowed the appeal and dismissed the suit with cost. Being aggrieved, the present second appeal has been preferred.

10. As already pointed out Mr.Damodharan, the learned counsel for the appellant elected the relief and confined the claim to the declaration that the plaintiff is entitled to easementary right by necessity and consequential permanent injunction and mandatory injunction as well as and gave up the plea of common passage.

11. Mr.Peppin Fernando, the learned counsel for the respondent contended that such an election is not permissible at this stage and no interference is called for in this second appeal as the judgment of the first appellate court is well considered.

12. The counsel appearing for either side cited earlier pronouncements with respect to the election of alternative reliefs prayed for. It is seen that the plaintiff had claimed co-ownership in respect of the second schedule common passage and in the alternative had prayed for right of easement by necessity over second schedule property.

13. Though the trial court upheld the plaintiffs claim that the plaintiff and the defendant are entitled to the second schedule as common passage, the first appellate court reversed the same. It is fairly stated that excepting the second schedule, th