The plaintiffs are the appellants herein. The suit was filed for permanent injunction restraining the defendants their men and agents from forcibly forming any cart track within the suit property.

2. The suit property is described as 46 cents of land meant for common purpose specified in the registered partition deed Ex.A.1 dated 02.04.1958 where, it is alleged that the defendants are forcibly forming a cart track.

3. Both the Courts below held against the plaintiffs holding that 46 cents of land earmarked under the partition deed Ex.A.1 includes cart track, to have access to the defendants land. The trial Court after considering the Ex.A.1 partition deed between the Kaithamalai Gounder grand-father of the plaintiffs and Sivanappa Goundar, held that the defendants have established their easementary right by necessity and also their right as a co-owner.

4. Aggrieved by the concurrent finding, the present appeal is filed. At the time of admission, this Court has formulated the following Substantial Questions of law.

(i). Whether the Courts below are correct in holding that the defendants have a right to form the cart track over the common land of 46 cents which was allotted for some other specific purposes as per Ex.A.1?

(ii). Whether the Courts below are correct in holding that the defendants can claim cart track right over the common land which was not available to their predecessor in title as per Ex.A.1?

(iii). Whether the Courts below are correct in holding that the defendants have right to have a new cart track over the common land of 46 cents by relying Ex.B.2 the later sale deed ignoring the earlier partition deed dated 02.04.1958 Ex.A.1?

(iv). The Courts below are correct in holding that the defendants can claim their easementary right when there is a existing cart track as per the report of the commissioner filed in Ex.C.1?

5. Before adverting to the specific facts of the case, it is essential to point out the legal position that claim of right of passage as a co-owner is diagonally opposite to the plea of right of passage as an easement. They are mutually exclusive to each other. Unfortunately in this case, the Courts below have held that the respondents right of passage and have a cart track in the common area earmarked for specific purpose as co-owner and also held that the passage right get enhanced by easement of necessity.

6. The right of enjoyment in the common property by the co-shares is subject to a restriction that such enjoyment should not prejudice or cause inconvenience or detrimental to the interest of the other co-owners. Whereas, the right of easement is not based on the title but accepting the title with the servient owner, the enjoyment of the easement has to be claimed by the dominant tenement.

7. In this case the plaintiffs have made mutually exclusively claim in respect of their the right of passage through a cart track in the common property. The Courts below have granted the relief recognising the plaintiff as co-owner of the property as well as owner of the dominant tenement and entitled for right of passage by easement of necessity.

8. The factual background of the case :-

Kaithamalai Gounder and Sivanappa Gounder are son of Marappan Gounder. On 02.04.1958 they entered into a partition deed in respect of properties jointly enjoyed by them so far. In the said partition deed while dividing the various agricultural land by metes and bounds, kept 46 cents of land in S.No.136 for common usage in which well, Kalam and garden sheds located. The cart track runs in S.No.136 East-West with 20 links width in 11 cents and continue in S.No.356 running East-West 7 cents and North-South 14 cents on the Eastern portion of the said survey number left for the use of passage, with restricted right of passage and not to graze or tether cattles. As per the partition deed Kaithamalai Gounder and Sivanappa Gounder were enjoying their respective properties peacefully and kept the cart track for passage and the 46 cents