The central legal point established in the judgment is that an easement acquired by grant cannot be extinguished on the ground stated in Section 41, emphasizing the distinction between legal extinction of an easementary right and the right by grant.

The plaintiff is the appellant. The suit is filed by the plaintiff for declaration of right of pathway of the plaintiff to reach his land in S.No.115 and the house situate in south-eastern corner of S.No.114 of Mavureddipatti village, Tiruchengode, and for consequential permanent injunction.

2. Originally the lands situate in S.No.116 and 115 of the above said village were commonly owned by one family. The land in S.No.116/4 belongs to the first defendant's husband. There is a cart track running east-west measuring about 20 feet width to reach lands in S.No.115. The plaintiff also had attached the plan describing the suit cart track. The plaintiff being the owner of S.No.115 claimed right of pathway by way of 'easement by grant'. Similarly, S.No.114 is the ancestral property of the plaintiff's family. There was a thatched house on the south-eastern corner of S.No.114 abutting the cart track. Thereafter, the said thatched house was converted into a tiled house in the year 1967 and Door Number of the said house is 4/3A. The plaintiff is residing there with his family. The plaintiff also has obtained service connection and has been living there using the cart track for more than the required statutory period. Hence, the plaintiff claimed 'right of easement' over the cart track by 'prescription'. As there was disturbance from the defendants, the plaintiff had come up with the suit for declaration of his right over the cart track.

3. The suit was resisted by the defendants denying all the claims made by the plaintiff. It is submitted by the defendants that S.No.116/4 belongs to the first defendant's husband. However, the existence of cart track to a width of 20 feet running east-west is denied by the defendants. The defendants further denied the ''easement by grant'' as claimed by the plaintiff. According to the defendants, one Komaravel Gounder owned land in S.No.115, which is on the eastern side of the defendants' land. The said Komaravel was given the right of pathway on the defendant's land as ''easement by necessity''. The lands in S.No.115 and the defendants' land were owned by one and the same person, and subsequently the defendants purchased the land in S.No.116/4 and the said Komaravel purchased the land in S.No.115 and thereafter, the land owned by Komaravel was purchased by the plaintiff.

As the plaintiff is the owner of S.No.114, which is the adjacent land, and the plaintiff has got right of way through S.No.114 to reach S.No.115, the defendants denied the plaintiff's claim of pathway over S.No.116/4 as not maintainable. Hence, the defendants prayed for dismissal of the suit.

4. Before the trial Court, on the side of plaintiff, the plaintiff examined himself as PW.1 and marked Exs.A1 and A4 and on the side of defendants, the first defendant examined herself as DW.1 and marked Exs.B1 to B4. Advocate Commissioner's report and plan were marked as court documents Ex.C1 and C2.

5. The trial Court after elaborate consideration of the facts and evidence available, decreed the suit permitting the plaintiff to use the 12 feet width cart track to reach his land in S.No.115 and to his house in S.No.114 and granting consequential injunction. Aggrieved by the same, the defendants had preferred A.S.No.45 of 2008 on the file of Subordinate Court, Tiruchengode. The lower appellate court dismissed the suit holding that the plaintiff is not entitled to the relief asked for on the ground that once S.No.115 was attached to S.No.114 by way of purchase, the 'right of easement' claimed by the plaintiff got extinguished. Aggrieved, the above Second Appeal is preferred.

6. At the time of admission, the following substantial question of law was framed for consideration:-

“Whether the lower appellate court has committed an error of law in not properly construing the recitals contained in Exs.A1 and A2 granting the right of way over A, B, C cart track and holding that the right conferred by grant under Exs.A1 and A2 is extinguished ?”

7.