The plaintiffs acquired the right to use the disputed cart track through grant, prescription, and necessity, as evidenced by the continuous usage for over 44 years and the existence of the cart track mentioned in the partition deed.

1. This appeal is directed against the judgment and decree passed by the first appellate Court in A.S.No.10 of 2004 dated 24.6.2004 in reversing the judgment and decree of the trial Court made in O.S.No.136 of 1999 dated 10.11.2003, dismissing the suit.

2. The appellants 1 to 5 were the defendants, the 6th appellant was impleaded as the legal representative of the deceased first appellant and the appellants 7 and 8 were brought on record as legal representatives of the 3rd appellant and the appellants 9 to 12 were brought on record as the legal representatives of the deceased 5th appellant in this appeal.

3. The case of the plaintiff as stated in the plaint before the trial Court would be thus:

The 2nd plaintiff is the son of the 1st plaintiff and the 3rd plaintiff is the brother of the 1st plaintiff. The 2nd defendant is the son of the 1st defendant. The 4th defendant is the son of the 3rd defendant. The defendant Nos. 1, 3 and 5 are the brothers and sons of one Velappa Gounder. Originally one Mola Gounder was the owner of R.S.Nos. 158,1 59 and 163 corresponding to Old S.Nos. 146, 151 and also other survey numbers and the same were in one unit. The said Mola Gounder had 4 sons and the plaintiffs and the defendants are the branches of the above said Mola Gounder. On 18.9.1961 the father and mother of the plaintiffs 1 and 3 by name Palani Gounder and Devayal and the plaintiffs 1 and 3 and their brother Velappa Gounder partitioned their family properties under a registered partition deed. In that partition deed, B-Schedule property was allotted to the 1st plaintiff and C-Schedule property was allotted to the 3rd plaintiff and D-schedule property was allotted to Velappa Gounder. The plaintiffs are enjoying their properties peacefully without any disturbance. The plaintiffs are paying kist to the Government. Alampalayam Koothapalayam Panchayat road running east-west and from that road, a cart track is branched to a width of 20 feet towards south and running across the 3rd parties land and then it proceeds towards the land of the defendants in between R.S.No.158 and 159 of Koothampalayam village upto the land of the plaintiffs. After that, the cart track turns towards east and then runs towards south to the lands of the defendants. A rough sketch of the pathway is produced along with the plaint. The pathway is shown in yellow colour. The plaintiffs are also owning houses and Thondupatti in R.S.No.163 at koothampalayam village. This cart track is the suit track. It is in existence from time immemorial. It is used by the plaintiffs to reach their lands. The plaintiffs as well as the predecessors in title as well as the defendants and their predecessors in title were using the said cart track for taking men, cattle, carts and vehicles, etc. The said cart track is clearly mentioned in the partition deed, dated 15.9.1961. The plaintiffs have perfected title, under the principles by easement by prescription. The plaintiffs have no other cart track, except this suit cart track. Therefore, under the principle of easement of necessity also, the plaintiffs are entitled to use the cart track. The plaintiffs are enjoying the suit cart track openly, continuously, uninterruptedly with the knowledge of the defendants and others till date. Therefore, the plaintiffs have perfected their right under the principles of easement of necessity, prescription and grant also. The properties of the plaintiffs are surrounded by the lands of the defendants. The defendants are having an eye over the properties of the plaintiffs. The defendants demanded the plaintiffs to sell their properties for which the plaintiffs refused. Hence, there arose enmity. All of a sudden, the defendant attempted to prevent the plaintiffs from using the suit cart track and also obliterate the same. The plaintiffs prevented the same. The defendants went away proclaiming to renew their attempt. Hence, the suit for permanent injunction with costs.

4. The objections raised by