The central legal point established in the judgment is the principle that the owner of the dominant heritage cannot burden the servient tenement with exclusive cultivable portions, influencing the court's decision to modify the decree regarding the right of way over agricultural land.

1. This second appeal is focused by the defendants, inveighing the judgment and decree dated 02.04.2008 passed by the learned Additional District Judge (Fast Track Court No.3), Vridhachalam in A.S.No.6 of 2007 reversing the judgment and decree dated 21.06.2006 passed by the learned District Munsif cum Judicial Magistrate, Thittagudi in O.S.No.407 of 2004.

2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:

a. The first respondent/plaintiff filed the suit seeking the following reliefs:

“TAMIL”

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b. The suit was resisted by the defendants by filing written statement and a counter claim also was filed seeking the following reliefs:

“TAMIL”

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c. Whereupon issues were framed by the trial court.

d. Up went the trial, during which, on the plaintiffs' side P.Ws.1 to 3 were examined and Exs.A1 to A48 were marked. On the defendants' side, D.Ws.1 to 4 were examined and Exs.B1 to B3 were marked and Court documents Exs.C1 to C3 were also marked.

e. Ultimately, the trial court dismissed the suit filed by the plaintiff and decreed the counter claim filed by the defendants.

f. Being aggrieved by and dissatisfied with the dismissal of the suit, the plaintiff preferred appeal but no appeal was filed as against the decreeing of the counter-claim. Whereupon the first appellate court, granted a limited relief in favour of the plaintiff and the operative portion of the decree is extracted here under for ready reference.

“TAMIL”

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g. Challenging and impugning the judgment and decree of the first appellate court, the defendants have preferred this second appeal by suggesting the following substantial questions of law: a] Whether the learned Additional District Judge is right in granting a decree in favour of the plaintiff for beyond the scope of the pleadings and relief claimed in the suit?

b] Whether the learned Additional District Judge committed a grave error in failing to appreciate the fatal admissions of the plaintiff in regard to the existence of right of way claimed by him in suit item 2?

c] Whether the learned Additional District Judge is right in ignoring the report of the advocate commissioner in regard to suit item 1 that it could not be identified as claimed by the plaintiff while granting a decree as prayed for?

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4. Indubitably and indisputably, the plaintiff and the defendants are relatives and there emerged an oral partition among them during the year 1978. In the plaint attached plan, it is found specified that the area bearing survey No.47/2A1 was allotted to the share of the plaintiff; whereas the area bearing Survey No.47/2A2 was allotted to the share of the defendants. In fact, mostly the plaintiff's share is situated to the North of the defendant's share. It is also a fact that the plaintiff purchased 64 cents of land in S.No.47/2B situated to the East of the defendants share. There is a land bearing S.No.47/2/3 situated to the North of the defendants as well as the plaintiff's newly purchased share. While so, the plaintiff felt his need to pass and re-pass through the land bearing S.No.47/2A2 of the second defendant especially through the CDEF portion so as to reach his share in Survey No.47/2A1. However, subsequently, the plaintiff expressed his desire to reach the CDEF portion through his own newly purchased property and he dropped his claim over ABCD portion, even though he claimed right of way over it in the plaint.

5. Heard both sides.

6. The learned senior counsel appearing for the appellants/defendants would submit that in view of the changed scenario, she is restricting her prayer in the second appeal only in accordance with para No.4 of the written statement of D2, which reads as under:

7. Whereas the learned counsel for the