The central legal point established in the judgment is the requirement for uninterrupted enjoyment of the right of way for more than 20 years to claim easementary rights under the Indian Easement Act.

JUDGMENT/ORDER

M. Govindaraj, J. - The present Second Appeal has been preferred against the concurrent findings of Courts below on a suit for permanent injunction.

2. For the sake of convenience the parties are called as per their rankings in the suit.

3. Plaintiffs are the appellants.

4. According to the plaintiffs their father one V.Viswananthan purchased a land measuring an extent of 8 1/2 cents in R.S.No.1788 and 1787 of Ootacamund town together with all rights of way and other easements, advantages and privileges appertaining thereto by registered sale deed No.218/1980 dated 04.02.1980. He gifted the said property in equal share measuring 0.02 8/16 cents each in favour of the plaintiffs by way of registered gift deed Nos.305 and 306/1981 dated 20.10.1981. Ever since the gift in favour of the plaintiffs in the year 1981 they were in peaceful possession and enjoyment of their respective shares along with the right of way (foot path) measuring a width of 5 feet being the only access to their property. The foot path made of stone stairs branching out from the Municipal office road(foot path) and reaching the plaintiffs property. The right of way was in enjoyment and usage by the plaintiffs and other adjoining owners from a very long period without any disturbance or hindrance. It is the only access to the plaintiffs properties and when the defendants demolished their old building and intended to put up a construction they attempted to remove the revetment/retaining wall of the foot path and thereby infringed the plaintiffs right over the property. The attempt of the defendants in removing the stones laid down in the foot path was objected and a survey was conducted on 22.07.2005 and it was declared as a common pathway and the defendants have no claim over the same. Taking this as a cause of action a suit for permanent injunction restraining the defendants from removing the stones from the retaining wall supporting the foot path and disturbing the peaceful enjoyment and right of way of the plaintiffs was filed.

5. The defendants denied the contents of the plaint. The claim that the vendor of the property to the plaintiffs father herself had only 7 1/2 cents Whereas the plaintiffs father has purchased 8 1/2 cents. At the time of purchase, the eastern boundary of the plaintiffs was shown as Municipal office lane situated in R.S.No.1783/2. There exists a foot path between the properties of the plaintiffs and the defendants. The plaintiffs were never in possession and enjoyment of the right of way over defendants land as claimed by them. The disputed foot path was built up by the defendants after they purchased the same by way of registered sale deed. The alternative pathway as found from the sale deed of original vendor and plaintiffs father would clearly show that there is no necessity for the plaintiffs to use the foot steps exclusively belonging to the defendants. In fact the plaintiffs attempted to include their name as owners of the property in revenue records. Patta was transferred in favour of them and after appeal by the defendants it was deleted and restored to its original position in the year 1996 itself. The defendants never removed the stair case and there is no right of way available to the plaintiffs over the foot path belonging to the defendants. In fact they have access to their property through the Municipal lane which the eastern boundary of the properties of the plaintiffs.

6. The Trial Court framed appropriate issues. Plaintiff husband examined himself as P.W.1 and marked Exs.A1 and A2. Defendants 1 and 2 examined themselves as D.W.1 and D.W.2 and marked Exs.B1 to B14. Through Court the Advocate Commissioner and Surveyor were examined as C.W.1 and 2 and Exhibits C1 and C2 were marked.

7. The Trial Court after considering the oral and documentary evidence, came to a conclusion that plaintiff have not made out a case for easement by necessity and dismissed the suit.

8. Against which, the plaintiffs preferred the appeal