The plaintiff has the duty to prove his case, including the right to easement of necessity and right by prescription, and the unreliability of ex parte commission reports.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 19.06.2000 passed in Appeal Suit No.31 of 1998 by the Sub Court, Kulithalai reversing the Judgment and decree dated 12.01.1998 passed in Original Suit No.236 of 1996 by the District Munsif Court, Kulithalai.)

1. The deceased first appellant is the plaintiff in O.S.No.236 of 1996, on the file of the learned District Munsif Court, Kulithalai. The respondents are the defendants 2 and 3 in the said suit. The first appellant filed the suit against the respondents herein for bare injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the suit 'B' schedule property which is nothing but a cart track. The trial Court decreed the suit. Challenging the judgment and decree passed by the trial Court, the respondents herein/defendants 2 and 3 filed an appeal before the Sub Court, Kulithalai, in A.S.No.31 of 1998. The Subordinate Judge, Kulithalai, after hearing the arguments of both sides and upon perusing the entire records, allowed the appeal and dismissed the suit. Challenging the judgment and decree passed by the first appellate Court, the plaintiff in the suit has filed the present second appeal before this Court.

2. The case of the first appellant/plaintiff as averred in the plaint reads as follows:

The plaintiff has encroached the suit 'A' schedule property, which is described as 'grama natham' and he has constructed a house therein. He obtained patta for the suit 'A' schedule property in Natham S.No.339/4 at Karuppathur Village during UDR scheme and was also paying house tax. The suit 'B' schedule property is a cart track. The plaintiff has been enjoying the suit 'B' schedule property for more than 50 years. The plaintiff and his neighbours are enjoying the said cart track with the knowledge of the defendants. The plaintiff does not have any other cart track except the suit 'B' schedule property/cart track to reach the suit 'A' schedule property and he is enjoying the suit 'A' schedule property for a long time. Therefore, he claimed the suit 'B' schedule property by easement of necessity and also right by prescription. Since the defendants encroached the suit 'B' schedule property and tried to put up fence, the plaintiff has filed the suit for bare injunction restraining the defendants from interfering with the possession and enjoyment of the suit 'B' schedule property viz., the cart track to reach the suit 'A' schedule property.

3. In the written statement filed on the side of the defendants 2 and 3, it is averred as follows:

The plaintiff is not entitled to get the relief with respect to the suit 'B' schedule property. There is no cart track at all as described in the suit 'B' schedule. The suit is not maintainable without seeking a relief of declaration, when the defendants are denying the existence of cart track. There is no cart track from the point 'AB' to 'CD' as described in the schedule. The plaintiff is misleading the Court. It is false to say that the plaintiff is enjoying the suit 'B' schedule property for more than 50 years. The patta granted in favour of the plaintiff is not admitted by the defendants. It is true that there is a north-south pathway proceeding from south to north and the said pathway is used by the village people to fetch water. There is no cart track or pathway available to the plaintiff or to anybody else in or over the defendants' property. The plaintiff has a tyre cart only for the past three years. The plaintiff had never been taking his cart track from the pathway on the East. On the western side of the plaintiff's house, there is a public road viz., Krishnarayapuram Panchayat Union – Karuppathur. In between his house and Karuppathur road his punja land is available, and through the said land he is taking his cart. The plaintiff, for some time had been taking his cart westwards of the temple and thereafter, on the northern side of the Natham vacant site, whi