JUDGMENT :

The 1st defendant is the appellant before this Court challenging the Judgment and Decree in A.S.No.10 of 2008 on the file of the learned Subordinate Judge, Perambalur in and by which the learned Judge has reversed the Judgment and Decree of the learned District Munsif, Perambalur in O.S.No.840 of 1995. The parties for the ease of understanding are referred to in the same array as in the suit.

2. The plaintiff herein had filed a suit O.S.No.840 of 1995 for a declaration of his easementary right to take cattle through the suit property and for a consequential relief of permanent injunction from restraining the user of the suit property.

3. It is the case of the plaintiff that he, his elder brother Shanmugham and their father Panchanathi Asari owned property in S.No.171/2. The elder brother of the plaintiff was allotted his house in the North and the plaintiff was allotted the middle portion and the father was allotted the land in the South. The property was West of the North South lane and South of East West Street. West of the plaintiff's and Panchanathi Asari's houses are vacant sites belonging to them. This site was used by them for tethering cattles. Between the houses of the plaintiff and his father there was an 5 human feet wide East West Lane to reach the Western side belonging to the plaintiff. Panchanathi Asari to whose share this land belonged had permitted the plaintiff to use the same to reach his cattle shed.

4. After the death of Panchanathi Asari, the 2nd defendant who is the son of Panchanathi Asari through his second wife was allotted the said portion. Even after he had taken possession, the plaintiff had been using the lane in question. On 27.04.1995, the 2nd defendant sold the property to the 1st defendant who started obstructing the use of the suit property. The plaintiff had claimed a right to the pathway on the basis of the easement of grant, prescription and necessity.

5. The 1st defendant had filed the Written Statement inter alia contending that in the year 1955, there was a registered Partition Deed between the parties in which the plaintiff was allotted the middle portion, his brother Shanmugham in the Northern portion and his father in Southern portion. Originally, there existed a small pathway before the house of the plaintiff which under the Partition Deed was allotted to the plaintiff's father. The plaintiff was not given any pathway right over the same. Thereafter, the plaintiff and his father had demolished their respective thatched houses and by consent constructed a terraced and tiled building keeping a common wall. Thereby, the usage of the lane in between the house of the plaintiff and his father had come to an end.

6. It was also their case that on the Southern side of the plaintiff's father house, there was a lane over which the plaintiff had no right. Similarly, he has no right over the vacant site on the Western portion of his father's property which was allotted to his father.

7. The 1st defendant would submit that the plaintiff has an access to his backyard from his Street through his house and that he has not prescribed title to the suit property. The right to use the vacant space on the West was not granted to the plaintiff. Therefore, he sought for dismissal of the suit.

8. The learned District Munsif, Perambalur by Judgment and Decree dated 27.11.2002 was pleased to dismiss the suit. Challenging the same, the plaintiff had filed A.S.No.10 of 2008 on the file of the learned Subordinate Judge, Perambalur. The learned Subordinate Judge by her Judgment and Decree dated 29.12.2008 was pleased to allow the appeal and reversed the Judgment and Decree of the trial Court. Challenging the same, the 1st defendant is before this Court.

9. The Second Appeal has been admitted on the following Substantial Question of Law on 30.06.2009:

“Whether the Lower Appellate Court is justified in decreeing the suit when the plaintiff has proved the user of the suit pathway for 15 years alone?”

10. Mr.A.K. K