The court's decision emphasized the importance of proper appreciation of evidence and the absence of substantial question of law in upholding the decree and judgment.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 20.11.2009 passed in A.S. No.85 of 2008, on the file of the Subordinate Judge, Dharmapuri, upholding the decree and judgment dated 22.01.2007 passed in O.S. No.156 of 2005, on the file of the District Munsif Court, Dharmapuri.)

1. The appellants are the defendants in O.S. No.156/2005 on the file of the District Munsif Court, Dharmapuri. The respondent/plaintiff filed the said suit for declaration of her right over the suit pathway and also for a permanent injunction restraining the appellants/defendants from interfering with her peaceful possession and enjoyment of the same and for costs.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

3. The case of the plaintiff and the defendants is as follows:

3.1. The plaintiff and her predecessor in title were using the 4 feet wide and 70 feet long suit pathway for more than 20 years. According to the plaintiff there is no other pathway for her to reach her land and that the defendants are attempting to interfere with her possession and enjoyment of her right over the common pathway. Hence she filed the suit seeking for the relief as stated above.

3.2. The defendants in the written statement have denied the right of the plaintiff over the suit pathway. According to them, the plaintiff never used the pathway as alleged by her and that there is no cause of action for filing the suit.

4. On the basis of the above pleadings, the trial court framed the following issues:

i. "Whether the plaintiff is entitled for declaration of suit common pathway as alleged in the plaint?

ii. Whether it is correct that the plaintiff is entitled to claim the right of pathway by easement of necessity?

iii. Whether the plaintiff is entitled for injunction against the defendants?

iv. To what relief?"

5. In the trial court, the plaintiff examined herself and two other witnesses and marked Ex.A1 to Ex.A10. The 2nd defendant examined himself and one another witness and marked Ex.B1.

6. After full contest, the trial court judge decreed the suit in favour of the plaintiff vide her decree and judgment dated 22.01.2007 on the ground that the evidence adduced on both sides shows that the predecessor in title of the plaintiff and the defendants were enjoying the common pathway and that the plaintiff after purchasing the property was using the said pathway to reach her property. The trial court judge further held that the defendants had not established that there is an alternate pathway for the plaintiff.

7. Aggrieved over the decree and judgment passed by the trial court, the defendant filed an appeal in A.S. No.85 of 2008, before the Sub Court, Dharmapuri. The learned Subordinate Judge, after analysing the oral and documentary evidence adduced on both sides, upheld the findings of the trial court and dismissed the appeal vide his decree and judgment dated 20.11.2009.

8. Now the Second Appeal is filed by the defendants against the concurrent findings of both the courts below. Notice of motion was issued to the respondent and after several adjournments, the case was posted for hearing today. In the Memorandum of Second Appeal, the appellants have raised the following substantial questions of law.

a) "Whether the courts below was right in granting declaration of right of easement of way by necessity when the existence alleged right of way came only about 15 years before the filing of suit?

b) Whether the courts below were right in taking into consideration of Ex.A8, which is Advocate Commissioner''s report and plan filed in another suit in O.S. No.165 of 1996 without examining the Advocate Commissioner?

c) Whether the courts below were right in relying upon Exs.A9 and A10, which is