In this second appeal, the defendants 1 & 2 have impugned the judgment and decree dated 24.02.2010 made in A.S.No.35 of 2009 on the file of the Sub Court, Tiruchengode, reversing the judgment and decree dated 28.02.2007 made in O.S.No.27 of 1994 on the file of the District Munsif Court, Tiruchengode.

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

"Whether in the absence of a document to prove title, the lower appellate court was correct in law in decreeing the suit on the ground that the respondent herein had an easement by grant over the pathway?"

3. The suit has been laid by the plaintiff for permanent injunction.

4. The Cart Track is the suit property. The plaintiff claims easementary right over the suit property by way of grant under the sale deed dated 10.08.1945 marked as Ex.A1 and also, the plaintiff, in support of his case, for claiming the above said right, placed reliance upon the sale deed dated 07.08.1945 marked as Ex.A6. The defendants, in their written statement, have all together not disputed the existence of the Cart track as described in the plaint. Even in the grounds of appeal, it has been accepted that under Ex.A1 only one cart track has been referred to as described in the plaint schedule and the other cart track mentioned in Ex.A1 is only customary cart track i.e. already available. This is pointed out in ground No.5. From the evidence adduced by the respective parties, as rightly found by the first appellate Court, it is seen that the plaintiff and the defendants are "Pangalis" and their ancestors had been in possession and enjoyment of the properties situated in the concerned area without effecting partition in common. As regards the above position, there is no dispute. The same has been admitted by Dw1, the second defendant. That apart, it is also found that the common ancestors of the parties, without going in for partition, had proceeded to effect sale deeds, while dividing the properties amongst themselves and accordingly, it is found that the sale transactions have been effected viz., Exs.A6, A1 and B1 and the same has also been admitted by DW1. Now, according to the plaintiff, he has been granted the easementary right over the suit property i.e. cart track under the sale deeds relied upon by him. A perusal of the sale deeds marked as Exs.A6 & 1 cumulatively would go to show that the cart track described as the suit property had been in existence and in the usage of all the parties concerned and accordingly, while effecting the sale transactions, the right of usage over the cart track had accordingly been conveyed in the manner and language known to them. Accordingly, it could be seen that specific reference of the cart track has been made under Ex.A6 and under Ex.A1, as rightly found by the first appellate Court, reference has also been made about the suit cart track, though at one place, it is mentioned as customary cart track i.e. which has been reiterated in ground No.5 of the second appeal.

5. The case of the defendants that the suit cart track as described in the plaint does not exist, as such, cannot be accepted in the face of the recitals, with reference to the same found in Exs.A6 & 1. That apart, it is found that in this case, an advocate commissioner was appointed to locate the existence of the suit cart track and accordingly, it is found that the commissioner, on his inspection of the suit property on 26.01.1994, found the existence of the said cart track as per the case of the plaintiff and accordingly, submitted his report and plan marked as Exs.C1 & 2. To Exs.C1 & 2, no objection seem to have been placed by the defendants. Therefore, it could be seen that on the date of the inspection of the suit property by the advocate commissioner, the suit cart track was found to be in existence. Accordingly, it could be seen that as rightly put forth by the counsel for the plaintiff, while effectin