JUDGMENT :

This second appeal has been filed challenging the reversal findings of the lower appellate court by its judgment and decree dated 23.11.2006 passed in A.S.No.7 of 2006.

2. The Appellant is the defendant in the suit O.S.No.42 of 2002 on the file of the District Munsif Court, Avinashi. The suit was filed by the respondent/plaintiff seeking for a declaration that she is entitled to use the suit pathway and she has also sought for permanent injunction restraining the Appellant/defendant from interfering with her right to use the suit pathway. It is the case of the respondent/plaintiff that the suit property is a foot pathway and it is her case that her mother had purchased S.F.No.271 on 04.11.1955 under a registered sale deed along with the right to use the subject pathway which was latter settled in her favour under the settlement deed dated 10.01.2001. Hence, according to the respondent/plaintiff, under the aforementioned document, she is having the right to the usage of the suit pathway.

3. The case of the Appellant/defendant as seen from his written statement is that there is no such pathway in existence as pleaded by the respondent/plaintiff. It is the case of the Appellant/defendant that the respondent/plaintiff has all along been using the east-west passage lying on the south of their respective properties of the respondent/plaintiff and the Appellant/defendant to reach her suit property. According to the Appellant/defendant, the suit has been filed in respect of a non-existing foot path.

4. The Trial Court framed issues and thereafter the respondent/plaintiff examined himself as PW1 and seven documents were filed on his side which were marked as Ex.A1 to Ex.A7 before the Trial Court. On the side of the Appellant/defendant, the defendant examined himself as DW1 and no document was filed on his side before the Trial Court. During the pendency of this suit, an Advocate Commissioner was appointed and his report and the plan attached were marked as Ex.C1 and Ex.C2 respectively before the Trial Court.

5. The Trial Court by its Judgment and Decree dated 21.12.2005 passed in O.S.No.42 of 2002 dismissed the suit filed by the respondent/plaintiff on the following grounds :

(a) Ex.A3-Patta standing in the name of the respondent/plaintiff is dated 17.05.2000 which is prior to the settlement deed (Ex.A2) dated 10.01.2001,

(b) House tax receipts Ex.A4 and Ex.A5 do not contain any facsimile of the village panchayat and hence, they are fabricated documents.

(c) The respondent/plaintiff (PW1) has admitted the existence of east to west passage on the southern side to reach her house.

(d) The respondent/plaintiff (PW1) has also admitted that no such pathway has been in existence, in and over the front yard of the Appellant/defendant house.

(e) Admission of PW1 is the best piece of evidence against her.

(f) The Advocate Commissioner's reports Ex.C1 and Ex.C2 also does not reveal the existence of any pathway.

(g) The sale deed Ex.A1 dated 04.11.1955 and the settlement deed Ex.A2 dated 10.01.2001 refers to about only the east-west mamool pathway and does not depict the property of the Appellant/defendant.

(h) The respondent/plaintiff has not established her continuous usage and enjoyment of the suit pathway for more than 20 years to justify her claim of easement by prescription.

6. Aggrieved by the Judgment and Decree dated 21.12.2005 passed in O.S.No.42 of 2002 whereby the suit was dismissed, the respondent/plaintiff preferred an appeal before the lower appellate court namely Sub Court, Tiruppur in A.S.No.7 of 2006. The lower appellate court reversed the findings of the Trial Court by allowing the appeal filed by the respondent/plaintiff and held that the suit pathway is nothing but a small passage lying in the front yard of the Appellant/defendant's property. The lower appellate court held that the respondent/plaintiff is entitled to use the suit pathway to enable her to reach the north-south panchayat road.

7. Aggrieved by the judg