Prescription of easementary right and the existence of alternative cart tracks for reaching a property were the central legal points established in the judgment.

The defendants have preferred this second appeal impugning the judgement and decree dated 24.09.2010 passed in A.S.No.19 of 2010 on the file of the Sub-Court, Rasipuram, confirming the judgement and decree dated 24.02.2010 passed in O.S.No.38 of 2007 on the file of the District Munsif Court, Rasipuram.

2. The suit has been laid for declaration and permanent injunction.

3. The suit has been laid in respect of the Cart Track shown as ‘ABCDE’ in the plaint plan. According to the plaintiffs, they claim right to the suit Cart track depicted in the plaint plan under the sale deed dated 27.01.1965 marked as Ex.A1. Further, according to the plaintiffs, they have prescribed there title to the suit cart track by prescription and also, it is contended that other than the suit Cart track, there is no other cart track for reaching the plaintiffs suit property.

4. The defendants have disputed the plaintiffs' right and title over the suit cart track as pleaded. However, the defendants have admitted the existence of the suit Cart Track. According to the defendants, the suit Cart Track exclusively belongs to them and the plaintiffs are not entitled to use the suit cart track to reach the suit property. Further, according to the defendants, the plaintiffs have other cart track situated on the eastern side to reach their property and therefore, the plaintiffs' case should not be accepted.

5. Both the courts below have rejected the defence put forth by the defendants and decreed the suit as prayed for holding that the plaintiffs have prescribed the right and title over the suit pathway by prescription and they have easementary right over the suit cart track and other than the plaintiff suit cart track, there is no other cart track to reach the plaint suit property. In this connection, the courts below have also relied upon the evidence marked as Exs.C1 to 4.

6. As found above, the existence of the suit Cart Track is not in dispute. Only dispute is, according to the defendants, the suit cart track is their exclusive property and the plaintiffs cannot claim any easementary right over the suit cart track as projected by them. That the plaintiffs have been given the cart track right under their title deed marked as Ex.A1 could be seen from the recitals found in the document. According to the defendants, there is no reference in specific about the suit cart track under Ex.A1.

7. As found by the courts below under Ex.A1, the second plaintiff has purchased the suit property including the cart track right from Kandappa Gounder Vahaiyara. The defendants claim title to the suit Cart Track under the partition deeds marked as Exs.B2 and 3. It could be seen that the heirs of Kandappa Gounder have divided their properties under Ex.B2 partition deed and further, under Ex.B3 partition deed, the heirs of Sengoda Gounder have partitioned the properties. It could be seen that Sengoda Gounder is one of the sons of Kandappa Gounder. Therefore, it could be seen that the partition deeds marked as Exs.B2 and 3 also reflect the existence of the suit Cart Track. That the suit cart track has been in existence for a long period of time could be gathered from Exs.B2 and 3 dated 23.03.1967 and 27.06.1979 respectively and Ex.A1 dated 27.01.1965. Therefore, it could be seen that even prior to the above said documents, the cart track had been in existence and been in usage of the property owners as Mamool cart track to reach their respective properties. Therefore, when it is found that the common owner of the properties adjoining the cart track was one and the same and subsequently, their heirs have alienated/partitioned their properties, it could be seen that for reaching having access to their respective shares/properties, they have reserved the cart track for common usage.

8. Now, the plaintiffs claim easementary right over the cart track. According to the defendants, the cart track in existence is only used by them to reach their properties including survey No.4/1. S.No.4