JUDGMENT :

R.M.T. Teekaa Raman, J.

1. The defeated defendants are the appellant herein.

2. The respondents herein/plaintiffs have filed a suit in O.S. No. 1399 of 1992 before the District Munsif Court, Erode, to declare that they are the absolute owners of the suit property and the defendants have right to use the suit pathway only as a foot path and for permanent injunction against the defendants from driving carts etc., in the suit property and not to interfere with the suit property. The suit was decreed. Aggrieved against the same, the appellants herein have filed an appeal in A.S. No. 69 of 1996 before the First Additional District Court, Erode and the same was dismissed. Hence, the Second Appeal.

3. The above Second Appeal was admitted on the following substantial questions of law:

1. Whether the findings of the Courts below regarding patta granted in respect of R.S. No. 411/4 in old Survey No. 326 are correct?

2. Whether the Courts below are correct in accepting the case of the respondents/plaintiffs inspite of respondents/plaintiffs failure to prove their easementary right?

4. Heard Mr. R. Singaravelan, learned Senior Counsel for the appellants and Mr. A. Sundaravadhanan for the fifth respondent and others are not necessary parties. Perused the materials placed on record.

5. Before the Trial Court, during the course of Trial on behalf of the plaintiffs PW1 was examined and marked Exs.A1 to A13 and on behalf of the defendants, DW1 & DW2 were examined and marked Exs.B1 to B10.

6. After hearing Mr. R. Singaravelan, learned senior advocate appearing for the appellants, this Court finds that the substantial question of law No. 2 has to be re-framed as under:

"Whether the Courts below are correct in accepting the case of the respondent/plaintiff in spite of the appellant/defendant had proved the easementary right by prescription."

7(a). It reveals from the records that the respondents herein have filed a suit in O.S. No. 1399 of 1992, on the file of the Court of District Munsif, Erode, to declare that they are the absolute owners of the suit property, which situated in S.F.N. 326 (R.S. No. 4114) Kulavilaku Village Erode District, subject to the petitioners herein/defendants right to use the same as a foot path and for permanent injunction restraining the petitioners herein/defendants from driving carts etc., in the suit property or interfering in any manner with their uses of the suit property.

7(b). The first defendant in the said suit has filed a written statement by contending that from time immemorial, the persons who executed the sale deed dated 20.09.1946, which is marked as Ex.A3, are using the suit property as a cart track and for grazing cattle without any interference and they acquired easementary rights. Moreover, patta has also been granted in favour of Karuppayee Ammal in R.S. No. 114/4 and hence it is not open to the respondents herein/plaintiffs to contend otherwise and hence, the Second Appeal.

8. The sum and substance of the lis between the parties is whether the suit property is to be used as "pathway or cart track"?

9. According to the respondents herein/plaintiffs, the suit property is the property owned by the ancestor and predecessor in the title of the plaintiffs/respondents herein and they were permitted to be used by the predecessor in title of the appellants herein/defendants and relied upon recital in Ex.A3/sale deed executed in favour of Karuppayee Ammal.

10. Per contra, the case of the appellants herein/defendants as projected by their learned senior counsel Mr. R. Singaravelan, is that both the Courts below have miserably failed to consider Exs.A11 & A12, that are the final decree proceedings passed in O.S. No. 341 of 1949 between the brothers of the predecessors in title, wherein, the suit property was mentioned as cart track and also invited my attention to Ex.A13/Advocate Commissioner report and plan, which was filed in O.S. No. 341 of 1949, by the Advocate Commissioner before the concerned Court on 14.06