The plaintiffs failed to establish the existence of the suit cart track, and their failure to seek the relief of declaration in respect of the alleged cart track led to the dismissal of their suit.

In this second appeal challenge is made to the judgment and decree dated 22.12.2003, passed in A.S.No.15 of 2003, on the file of the Subordinate Court, Sankari, reversing the judgment and decree dated 31.03.2003, passed in O.S. No.81 of 2000, on the file of the District Munsif Court, Sankari.

2. Parties are referred to as per their rankings in the trial Court.

3. Suit for permanent injunction.

4. The case of the plaintiffs, in brief, is that the plaintiffs 2 and 3 are the sons of the first plaintiff's elder brother's son. The defendants 1 to 4 are the sons of the 5th defendant and the defendants 1 to 4 are the sons of another elder brother of the first plaintiff. The suit property is a common cart track and it branches from north south high ways road in S.No.179/9-B-2-B and runs through the defendants' lands in S.No.179/9-B-2-A and the lands of the plaintiffs 2 and 3 in S.No.179/9-B-1 and reaches the first plaintiff's land in S.No.179/9-A on the southern side of the same survey numbers and on the west of the north south high ways road to a breadth of 10 feet and a length of 100 feet as shown in the plaint plan as ABCD. The abovesaid property and other properties originally belonged to the first plaintiff's grand father Muthu gounder and Muthu gounder and his sons partitioned their properties long back orally and were in separate possession of their respective shares and the first plaintiff's father Ayyadurai died fifty years ago leaving behind his four sons, namely, Rajalingam, Sivasankaran, Ambigapathi and Neelamegam and the first plaintiff and his brothers partitioned their properties orally in the year 1976 leaving the suit cart track as a common one. The abovesaid oral partition was given effect to and the plaintiffs are in separate possession and enjoyment of the properties allotted to them and enjoying the suit cart track without any interruption for the past 25 years and the plaintiffs have to take their men and materials from the high ways only through the suit cart track. The plaintiffs are claiming right to the suit cart track by way easement of necessity and by way of long enjoyment and due to family dispute, the defendants are giving troubles to the plaintiffs in the enjoyment of the suit cart track and also trying to obliterate the same and the defendants are not entitled to prevent the plaintiffs to enjoy the suit cart track for having access to their lands and not entitled to obliterate the same and inasmuch as the defendants acts persisted, according to the plaintiffs, they had been necessitated to lay the suit for appropriate reliefs.

5. The case of the defendants, in brief, is that the suit laid by the plaintiffs is not maintainable either in law or on facts. There is no cart track as described in the plaint and the abovesaid alleged cart track is not in existence at any point of time on the southern end of the lands of the parties as claimed in the plaint. The lands in S.No.179/9A and S.No.179/9-B originally belonged to Ayyadurai and his four sons partitioned the said properties into four shares by forming north south ridges and the western share was allotted to Ambigapathi, the first plaintiff and the next share on the east was allotted to Neelamegam and the third share from the west was allotted to Rajalingam, the father of the plaintiffs 2 and 3 and the fourth share was allotted to the father of the defendants 1 to 4 and the husband of the 5th defendant and the abovesaid partition took place about 25 years ago orally and subsequent to the partition, the allotted shares were sub divided as detailed in the written statement and the parties are in possession and enjoyment of their respective shares and the said partition is a concluded one. The lands in S.No.179/9-B2 lies adjoining the old panchayat road running from K.K.Nagar road to Mettukkadu and it was of inferior soil. So, a larger extent was allotted to that share and the highways department acquired an extent of Hec.0.05.0 of land in the share o