JUDGMENT :

Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 06.02.2009 made in A.S.No.21 of 2008 on the file of the learned II Additional Subordinate Judge, Gobichettipalayam, confirming the judgment and decree dated 22.10.2007 made in O.S.No.21 of 2004 on the file of the learned District Munsif, Sathyamangalam.

1. The Second Appeal is focused as against the judgment and decree dated 06.02.2009 passed in A.S.No.21 of 2008 by the learned II Additional Subordinate Judge, Gobichettipalayam, confirming the judgment and decree dated 22.10.2007, made in O.S.No.21 of 2004 by the learned District Munsif, Sathyamangalam.

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

3. The laconic averments made in the plaint, are as follows:

(i) The 1st plaintiff is the absolute owner of the land comprised in Survey Nos.167/2, 8, 10, 166/5, 6, 9 and 174/3, 5 of Sunkarampalayam Village. Similarly, the 2nd and 3rd plaintiffs are having the lands in Survey Nos.166/2, 3, 4, 7, 8, 10, 11, 167/3, 4, 9 and in 174/4, 6, 7 of the same village. The 3rd plaintiff is having three brothers, among which, from one of the brother Arumugam, he purchased the land vide sale deed dated 15.02.1989. Further another brother Kaliappa Gounder, is also having a share in the suit property. Since the said Kaliappa Gounder had no intention to file a suit, he was added as the 5th respondent in the suit.

(ii) The fathers of the plaintiffs 1 to 3, are brothers and their father’s name is one Karuppa Gounder. Plaintiffs are having the land on the Eastern side of the North-South of the cart track, which was shown in the rough sketch. From the date of purchase and also from the date of grant, the plaintiffs paid the necessary tax to the suit land, and they have been cultivating their lands.

(iii) The defendants are having the agricultural lands on the eastern side of the plaintiff’s land. The defendants 2 to 4 are the sons of the first defendant. Before filing the suit, the defendants 1 to 4 asked the plaintiffs to allot some portion in the land owned by the plaintiffs, as a cart track. Since the plaintiffs have refused to the same, the defendants 1 to 4, damaged the live fence, which was marked as ‘XY’ in the rough plan. In the panchayat held, the defendants asked apology and thereafter, they made a proclamation that they would form a cart track in the plaintiff’s land. Previous to the suit, the defendants reached their field by using the land, which was situated on the Eastern side of their lands. At no point of time, the suit land has been used as a cart track. Now, the defendants are attempting to form a cart track. Hence, the suit.

4. The averments found in the written statement filed by the 1st defendant, which were adopted by the defendants 2 to 4, are as follows:

(i) The averments made in the plaint with respect to the lands owned by the plaintiffs are true. However, the lands in Survey Nos.166/12 and 174/9 belongs to 1st defendant. After putting up a hut, the defendants were cultivating the said land for the past 70 years. The defendants used to take cart through SF No.166, which belongs to the plaintiffs.

(ii) The existence of cart track was mentioned in the sale deed dated 08.05.1942. Excepting the suit track, no other cart track is found available to the defendants. In order to take vengeance, the plaintiffs damaged the suit cart track. Therefore, the defendants are entitled to the suit cart track through easment by grant and easment by necessity.

5. Apart from filing the written statement, the defendants 1 to 4 filed a counter claim application wherein they have stated as follows:

(i) In between the defendants’ land and public itteri which runs North-South, on West lies the plaintiffs’ land S.F.No.166 and to reach the defendants’ land, there is an East-West cart track branching from North-South itteri. The pathway measu