The central legal point established in the judgment is the requirement of absolute necessity and absence of alternative access for granting easement of necessity under the Indian Easement Act.

Challenging the judgment of learned First Additional Subordinate Judge, Erode, passed in A.S.No.58 of 2005 dated 07.03.2006, the second appeal have been filed.

2. The plaintiff is the appellant before this Court. The suit filed by the plaintiff seeking declaration of his right to take vehicle of all types, cattle and men to the alleged pathway and perpetual injunction restraining defendants 2 and 3 and there means from interfering the plaintiff's right to use the said pathway was not found in favour of the plaintiff by the Courts below. Hence Second Appeal.

3. The contention of the appellant is that he purchased 0.12.5 acres of land in survey no.63/3A from one Mariammal and others vide sale deed dated 01.06.1972. According to the plaintiff the larger extent of land in the said survey no.63/3A was held by the common owners and they have divided into parts of 25 to 30 cents each with an express understanding, the purchase will have right of pathway on the extreme Southern and extreme East to connect Water Works Road on the western side and Krishnampalayam Road on the Northern side. Such a pathway is absolutely necessary for ingress and egress of the plot owners by the plaintiff. The specific case of the plaintiff is that along with the plaintiff all the defendants are entitled for usage of the cart way. However, defendants 1 to 3 are trying to encroach upon the cart way.

4. The first defendant has filed his written statement stating that this is the second round of litigation. In the earlier suit filed by the plaintiff claiming the same extent of land in survey no.63/3A as shown in this suit was dismissed by the Court in the judgment and decree passed in O.S. No. 666 of 1972. Therefore the present suit is barred by resjudicata. There is no cart track as alleged by the plaintiff running North South connecting Krishnampalayam Road. Even if plaintiff was conferred with any such right earlier the same is lost by non usage and got extinguished by lapse of time.

5. Based on the rival claim, the trial Court has framed the following issues:-

1. Whether the plaintiff is entitled for a declaration in respect of cart track?

2. Whether the plaintiff is entitled for permanent injunction?

3. What other relief?

The following additional issues were framed on 07.07.2004.

1. Whether the suit is barred by resjudicata u/s.11 Civil Procedure Code?

2. Whether the suit is barred under Order 2 rule 2 CPC?

6. On behalf of the plaintiff 3 exhibits were marked and on behalf of the defendants, 5 exhibits were marked. The plaintiff and the second defendant were examined as P.W.1 and D.W.1 respectively. The commissioner report and sketch were marked as Ex.C.1 and Ex.C.2. After analysing the evidence available, the trial Court has observed that the documents relied by the plaintiff does not disclose the cart track which runs East-West on the Southern end extent and towards North and run North South up to Krishnampalayam Road. From Ex.A.3 partition deed between the predecessor in title only the cart track running East-West is mentioned. Neither the documents relied by the plaintiff, nor the evidences let in by him in support of his case, nor the commissioner report supports the case of the plaintiff, that the cart track exists on the eastern side of the plaintiff plot. There is no trace of pathway or cart track could be seen from the report of the Advocate commissioner. Therefore, the trail Court dismissed the suit which was confirmed by the first Appellant Court.

7. The first appellate Court has observed that the plaintiff has initially claimed declaration over the alleged path way as a joint owner of the pathway along with the other plot owners who have purchased from the common vendor. However after loosing the case before the trial Court, he pleads easement of necessity to use the pathway. A person who claims right as a common owner cannot seek easement of necessity which is available only for a person who accepts the ownership with third party. Having claim