The legal principle established is the recognition of the right of way over a pathway based on historical usage and grant, as evidenced by the partition deed and corroborating evidence.

JUDGMENT :

(Prayer: Second Appeals filed under Section 100 of Civil Procedure Code, against the judgment and decree made in A.S.Nos.4 and 5 of 2013 on the file of Sub Court, Rasipuram, dated 04.12.2013 confirming the judgment and decree made in O.S.Nos.230 and 231 of 2010 on the file of District Munsif Court, Rasipuram dated 10.08.2012.)

1. Second Appeal Nos.260 and 261 of 2016 are directed against the common judgment and decree dated 04.12.2013 passed in A.S.Nos.4 and 5 of 2013 on the file of Subordinate Court, Rasipuram, confirming the judgment and decree dated 10.08.2012 passed in O.S.Nos.230 and 231 of 2010 on the file of the District Munsif Court, Rasipuram.

2. Both the second appeals have been admitted on the following substantial questions of law.

i. Whether the judgments of the courts below are vitiated for misreading of pleadings in stating that the appellant has not pleaded availability of alternative pathway and hence, evidence regarding the same is inadmissible?

ii. Whether the judgments of courts below are vitiated for ignoring material evidence on record?

3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

4. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

5. The suit in O.S. No.230 of 2010 has been laid by the plaintiffs against the defendant for the relief of permanent injunction restraining him from in any way interfering or obstructing the enjoyment and usage of the pathway mentioned as ABC in the rough sketch filed along with their plaint. Whereas the suit in O.S.No.231 of 2010 has been laid by the defendant against the plaintiffs for the relief of permanent injunction restraining them from in any manner preventing or obstructing the defendant from putting up the fence on the western side of his propery by erecting stones.

6. The dispute between the parties is only in respect of the pathway running north south branching from east west Rasipuram-Aathur main road and running towards south on the western side of the defendants' property. Now according to the plaintiffs, the above said pathway is the only access to their property for reaching the Rasipuram-Aathur main road and as could be seen from the materials placed on record, it is found that the plaintiffs' property is situated immediately south of the defendant's property and the defendant's property is situated immediately south of Rasipuram-Aathur main road. From the pleas set out by the respective parties as well as the materials placed on record, it is found that both the parties claim their origin of title to their respective properties by way of a partition deed dated 17.11.1950, the copy of which deed has been marked as Ex.A6/B1. It is found that the property belonging to the defendant is comprised in survey No.196/4B1 of the suit village and the plaintiff's property is comprised in survey No.196/4A of the suit village and as could be seen from the available materials as well as commissioner's report and plan exhibited in the matter, the house is situated partly in survey No. 196/4B1 and partly in survey No.196/4A and the defendant examined as D.W.1 has admitted that the northern half portion of the said house belongs to him and the southern half portion of the said house belongs to the plaintiffs and also would admit that he is using the pathway in dispute shown as ABC in the rough sketch to have ingress and egress to his house portion. Therefore, as rightly found and determined by the courts below, even though the defendant would claim the absence of any pathway on the western side of the properties belonging to the respective parties, as above stated, the defendant has admitted the use of the pathway for reaching his house portion and therefore, as held by the courts below, the defendant has projected a false case as if no pathway at all has been in existence on the wes