S.A. No. 712 of 2011

1. Challenge, in this second appeal is made by the plaintiff against the judgment and decree dated 19.02.2010 passed in A.S.No.113 of 2005 on the file of the Sub Court, Namakkal, reversing the judgment and decree dated 18.04.2005 passed in O.S.No.289 of 2003 on the file of the Principal District Munsif Court, Namakkal.

S.A. No.713 of 2011

Challenge, in this second appeal is made by the 1st defendant/plaintiff in O.S.No.289 of 2003 against the judgment and decree dated 19.02.2010 passed in A.S.No.112 of 2005 on the file of the Sub Court, Namakkal, reversing the judgment and decree dated 18.04.2005 passed in O.S.No.263 of 2003 on the file of the Principal District Munsif Court, Namakkal.

2. The second appeals have been admitted and the following substantial question of law is formulated for consideration in the second appeals:-

“Whether the judgments and decrees of the first appellate court in dismissing the suit laid by the plaintiff and decreeing the suit laid by the first defendant are based upon the perverse findings and misdirected against the evidence on record?”

3. For the sake of convenience, the parties are referred to as per their ranking in the trial Court in O.S.No.289 of 2003.

4. As regards the right and title of the plaintiff in respect of the property purchased under Ex.A1, the first defendant has not raised any dispute. Similarly, as regards the right and title of the property acquired by the first defendant under the partition deed marked as Ex.B1, the plaintiff has not raised any dispute. The only dispute between the parties is with reference to the suit pathway, pertaining to which, the plaintiff has laid the suit, claiming the reliefs of declaration and permanent injunction. According to the plaintiff, he has been granted the pathway right in the property belonging to the first defendant situated in Survey No.11/1B under Ex.A1 and he and his predecessor in interest have been using the suit pathway for more than the prescribed period without any interruption whatsoever and thus, according to the plaintiff, he has acquired prescriptive easementary right over the suit pathway and inasmuch as the defendants attempted to interfere with his possession and enjoyment over the same, he has been necessitated to lay the suit against the defendants.

5. Per contra, the first defendant has denied the existence of the suit pathway as put forth by the plaintiff and according to him, no such pathway is in existence and has not been in use either by the plaintiff or the others and according to the first defendant, inasmuch as the plaintiff and others, without any authority, made attempts to interfere with his possession and enjoyment of the property acquired by him under Ex.B1 partition suit, he has been necessitated to lay the suit for permanent injunction.

6. As seen from the pleadings and also the evidence adduced in the matters, it is found that the plaintiff is claiming the suit pathway right (easementary) over the property belonging to the first defendant situated in Survey No.11/1B. Now, according to the plaintiff, the said pathway measures to a width of 5', the plaintiff claims easementary right over the suit pathway under Ex.A1. A perusal of Ex.A1 would go to show that as rightly put forth by the first defendant's counsel, there is no reference about the width of the suit pathway. However, under the said document, it is found that the plaintiff has been given the pathway right over the property situated in Survey No.11/1B on the western side and admittedly, survey No.11/1B belongs to the first defendant. Therefore, it is found that the plaintiff claims easementary right over the suit pathway by prescription, which runs, only through the land belonging to the first defendant. It is also found that the plaintiff is not claiming any absolute right over the suit pathway.

7. The confusion seems to have arisen, inasmuch as the first defendant alleging that there is no pathway in his property as contend