JUDGMENT :

This Second Appeal has been preferred against the judgment and decree dated 13.06.2007 of the learned Additional District Judge, Fast Track Court, Ariyalur in A.S.No.93 of 2003.

2. The deceased appellant was the sole defendant in the suit and the appellants 2 to 5 are his legal representatives.

3. The avernments of the parties in brief :-

The father of the defendant namely Rathina Mudaliyar is the son of one Arumuga Mudaliyar. Rathina Mudaliyar has got a brother by name Chockalinga Mudaliyar. The portions shown as G2 G1 G C D D1 B A1 A A2 in the suit plan are the portions of house and garden fell to the share of Rathina Mudaliayar. The portions shown as A2 AA1 BB1 M K2 K1 K is allotted to the share of Chockalinga Mudaliyar. After the demise of Chockalinga Mudaliyar, his son Thangavel Mudaliyar inherited his father’s share and was in enjoyment of the same. He sold the garden portion to his paternal uncle Rathina Mudaliyar. After purchasing the above said portions, Rathina Mudaliyar was in enjoyment of the same along with his share.

3.1 There is a cow shed in the property enjoyed by Rathina Mudaliyar and it is shown in the plaint plan as G2 G1 A K1 K A2. Rathina Mudaliyar used to reach the cow shed by walking on the lane situated on the Northern side of his house. The deceased appellant and one Marimuthu are the two sons of Rathina Mudaliyar. The elder son Marimuthu got married and he died when his son Elavarasan was conceived by his wife. During his lifetime, Rathina Mudaliyar had executed a Will and bequeathed the suit property to his minor grandchild. After the demise of Rathina Mudaliyar, the Will came into force and the deceased first appellant and he was in enjoyment of garden portion shown as G2 G1 G C B A1 A A2, the backyard and the house portion shown as C D D1 B C. The said grandson of Rathina Mudaliyar namely Elavarasan got the portion shown as A2 A A1 B K2 K1 K and C D B1 B and was in enjoyment of the same through his mother and guardian Mangallamal. The said portion would include the half right in the half portion of the lane on the northern side. The said Mangallamal had sold the garden part shown as A2 A A1 B K2 K1 K in favour of the plaintiff for the welfare of minor Elavarasan. In the said sale deed itself it is mentioned that the plaintiff has got the right of pathway over the northern side of the lane in order to reach his cow shed. The said pathway is shown as A A1 B C B E K G H I in red colour.

3.2 The plaintiff was in enjoyment of the said lane; excepting the said pathway, the plaintiff has no other pathway. The plaintiff has got an easementary right over the pathway. But on 01.08.1995, the defendant with an intention of disturbing the plaintiff's easmentary right blocked the pathway at the points A A1 by putting bamboo fence at the points A and B. The plaintiff thwarted such attempt; however, the defendant continued to deny the plaintiff's easementary right and caused disturbance; so the plaintiff has filed the suit for declaring his easementary right over the pathway and mandatory injunction for directing the defendant to remove the natural fence.

4. The Brief facts of the written statement are as follows :-

The plaintiff does not have any easementary right over A A1 B C D E F G H I as alleged by him; it is true that the plaintiff had purchased the garden and cow shed from Mangallamal on 01.03.1999. However, the plaintiff was having access to the cow shed by walking towards his old house and through his garden itself easily; the plaintiff was enjoying the old garden and his newly purchased garden as one unit; hence, there is no necessity to walk over the suit pathway; even if there was any easementary right by necessity, it will get extinguished after the purchase of the garden from Mangallamal; the deceased first appellant had raised a compound wall to separate his property from the plaintiff’s property; at that point of time, the defendant did not make any objection; the said compound wall raised by