JUDGMENT :

Prayer : This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree of the learned Subordinate Judge, Poonamallee dated 08.12.2003 and made in A.S.No. 24 of 2002 reversing the Judgment and Decree of the learned District Munsif, Poonamallee dated 24.07.2002 and made in O.S.No. 65 of 1991 and to set aside the same.

This appeal is preferred as against Judgment and Decree dated 08.12.2003 passed in A.S.No. 24 of 2002 on the file of the learned Subordinate Judge, Poonamallee reversing the Judgment and Decree dated 24.07.2002 passed in O.S.No. 65 of 1991 on the file of the learned District Munsif, Poonamallee.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

3. The case of the plaintiffs in brief is as follows :-

3.1. The suit properties originally belonged to the plaintiff's father. He executed a Will dated 07.02.1946. A-Schedule property was bequeathed in favour of deceased sole plaintiff. After his demise, the said Will was also probated. In the same will, the suit B-Schedule property was bequeathed to the first defendant who is none other than the sole plaintiff's own sister. The suit C-Schedule property is a portion of the B-Schedule property and the plaintiff has to pass and re-pass over C-Schedule property to and from A-Schedule property. The street is situated to the south of B-Schedule property. Except the C-Schedule property, there is no other access for the plaintiff to reach A-Schedule property from the street. They are using C-Schedule property to have ingress and egress from A-Schedule property to the street ever since the date when the Will came into force. Thus, they prescribe right to use the C-Schedule property as a passage to have ingress and egress from A-Schedule property to the Street on the south. Whileso, the first Defendant negotiated for sale of B-Schedule property. First defendant had made arrangements to convey B-Schedule property to a third party ignoring the plaintiff's easementary right over the B-Schedule property. When it was questioned by the plaintiff, the first defendant had started obstructing plaintiff's access over C-Schedule property.

4. The second defendant, purchased the property from the first defendant. Hence the plaintiff filed a petition to implead the second defendant and he has been impleaded. Thereafter, the sole plaintiff died and her legal heirs were impleaded as plaintiffs 2 to 5 in the suit. Hence the suit.

5. Resisting the same, the first defendant had filed her written statement stating that the A - Schedule Property was acquired by the plaintiff by Will dated 07.02.1946 and B-Schedule property was acquired by the first defendant through the same Will. There is no portion of C - schedule property situated in the B-Schedule property and it was never used by the plaintiff at any point of time as ingress and egress. There is no pathway as alleged in the plaint. The C - Schedule property is only created by the sole plaintiff for the purpose of this case. The Will dated 07.02.1942 never stated anywhere about the C - Schedule property pathway. The plaintiff has got a separate entrance and at no point of time, she used the B - Schedule portion of the property as pathway. The further allegations that except the C - Schedule property, there is no other access for the plaintiff to reach A Schedule property from the street are all false, baseless and the defendant denied the same.

6. On the side of the plaintiffs, PW1 was examined and Exs.A1 to A12 were marked. On the side of the defendants, DW1 & DW2 were examined and Exs.D1 and D2 are marked.

7. The trial court dismissed the suit filed by the plaintiff. Aggrieved by the same, the plaintiffs preferred an appeal suit in A.S.No.24 of 2002 and the first Appellate Court reversed the Judgment and Decree passed by the trial court and decreed the suit in favour of the plaintiffs. Aggrieved by the same, the second defendant filed this Second Appea