The appellant is the 3rd defendant in a suit for declaration and for permanent injunction. The 1st respondent herein as the plaintiff sought the relief of declaration to declare his easementary right over the suit schedule cart track and for permanent injunction restraining the defendants from interfering with his right of enjoyment of such easementary right.

2. The case of the plaintiff in short is as follows:

He purchased the suit A-Schedule property by way of three sale deeds along with the right to use the cart track shown as B-Schedule from his vendors, who in turn, got such easementary right from the defendant through an agreement dated 07.03.2005. In all the three sale deeds, the first defendant has signed as a witness acknowledging the easementary right of the plaintiff over the cart track in the suit B-Schedule property. However, the defendants attempted to destroy the cart track in B-Schedule and cultivate the same. The plaintiff objected to such attempt and gave a complaint before the Police. Hence, the present suit is filed with the relief as stated supra.

3. The defendants 1 and 2 filed their written statement. The 3rd defendant purchased the B-Schedule property along with other properties from the defendants 1 and 2 during the pendency of the suit and got himself impleaded as the 3rd defendant in the suit and filed a separate written statement, however, in line with the written statement already filed by the defendants 1 and 2. Thus, the contention of the defendants are as follows:

No such cart track is in existence in the B-Schedule property. The plaintiff's predecessors in title had not acquired any easementary right over any cart track by way of the agreement dated 07.03.2005. The 8 cents of land shown as B-Schedule property is not a cart track and the defendants 1 and 2 did not convey any easementary right over the same to the plaintiff's predecessors in title under the agreement dated 07.03.2005. The defendants are doing agriculture in the said 8 cents of land. The agreement dated 07.03.2005 is false and no such agreement was executed.

4. Before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A6 on his side. The defendants 1 and 2 though filed their written statement, have subsequently chosen to remain exparte. The 3rd defendant has examined himself as D.W.1 and marked Exs.B1 to B9 on his side.

5. The trial Court, on considering the rival pleadings of the parties and the evidence let in by them, found that the agreement dated 07.03.2005 has not been acted upon and that the plaintiff has not established his easementary right over the B-Schedule property. Thus, the trial Court dismissed the suit. On Appeal by the plaintiff, the lower Appellate Court found that the said agreement dated 07.03.2005 is a valid document and has been acted upon and that the B-Schedule property is a cart track, over which, the plaintiff is having the easementary right. Accordingly, the lower Appellate Court allowed the Appeal thereby, decreeing the suit.

6. Challenging such reversal finding, the present Second Appeal is filed before this Court by the 3rd defendant. At the time of admitting the Second Appeal, the following substantial questions of law were framed:

(i) Whether the first appellate Court is erred in shifting the burden of proof when the plaintiff in a suit for declaration would succeed only on the strength of his case by adducing evidence to discharge the onus on him, irrespective of the question whether the defendants have proved their case or not?

(ii) When Ex.A1 dated 07.03.2005 is hit by Section 6(c) of the Transfer of Property Act, 1882, whether the first appellate Court is correct in law in decreeing the suit by recognizing the claim of the plaintiff under the agreement dated 07.03.2005(Ex.A1)?

7. Mr. N. Manokaran, learned counsel appearing for the appellant submitted as follows:

Ex.A1 agreement dated 07.03.2005 is not a conveyance and it is only an agreement of easementary right confer