IMPORTANT POINT
Easementary rights must be explicitly claimed in pleadings; claims of title and easement cannot coexist without admitting the adversary's title.

JUDGMENT :

(S. Sounthar, J.) :

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.31 of 2004, dated 24.6.2005, on the file of Sub-Court, Tuticorin reversing the judgment and decree made in O.S.No.114 of 1999, dated 21.7.2003, on the file of Additional District Munsif Court, Turicorin.)

The Second Appeal is directed against the judgment and decree made in A.S.No.31 of 2004, dated 24.6.2005, on the file of Sub-Court, Tuticorin reversing the judgment and decree made in O.S.No.114 of 1999, dated 21.7.2003, on the file of Additional District Munsif Court, Turicorin.

2. The defendant in the suit is the appellant. The respondents/plaintiffs filed a suit for declaration of title and injunction in respect of suit second schedule property. They also sought for a declaration that suit third schedule property was common pathway for both the parties and for injunction restraining defendant from interferring with plaintiff’s common right over suit second third schedule property. The Plaintiff also sought for mandatory injunction directing defendant to remove the constructions put up by him in suit third schedule property. The trial Court partly decreed the suit in respect of suit second schedule property. The plaintiffs filed an appeal and the First Appellate Court reversed the finding of trial Court regarding third schedule property and granted the decree as prayed for in respect of suit third schedule property also. Aggrieved by the same, the defendant is before this Court by way of this Second Appeal.

3. It is seen from the records that the defendant has not questioned the decree granted by the trial Court in respect of suit second schedule property by filing any first appeal. Therefore the arguments in the Second Appeal are confirned only to the dispute concerning the suit third schedule lane.

4. According to the respondents/Plaintiffs , they purchased the suit first schedule property(suit second schedule property is part of first schedule property) under sale deed, dated 15.07.1994 from one Mary Panchavarnam. The vendors of the plaintiffs in-turn purchased the suit A schedule property from one Mary Panchavarnam under sale deed, dated 16.7.1941. It was claimed by the plaintiffs that after the purchase, they demolished the old construction stood in the property and constructed a new house leaving vacant space on the western side. The vacant space left by the plaintiffs on the western side of his house was shown as suit second schedule of the suit property. The suit second schedule property is part and parcel of the suit first schedule property. The defendant is the western neighbour of the plaintiffs. It was the case of the plaintiffs that in between the house of the defendant and the property of the plaintiffs purchased under Ex.A1, there was a common lane and the same had been described as suit third schedule property. It was claimed by the plaintiffs that they and their predecessor-in-interest had been using the suit third schedule property as a common lane with the owner of the property on the western side. It was also claimed that the suit third schedule property was mentioned in the title document of the plaintiffs as a common lane. The plaintiffs further cliamed that they had been in exclusive possession and enjoyment of the suit first and second schedule property and the suit third schedule property had been used as a common lane. The defendant attempted to interfere with the plaintiffs’ enjoyment of the third schedule property and hence, the plaintiffs were constrained to file the suit for declaration and injunction. Pending suit, the defendant encroached a portion of the suit third schedule property and constructed a latrine and hence, the plaintiffs have amended the plaint seeking the relief of mandatory injunction to remove the construction put up by the defendant.

5. The appellant/defendant filed a written statement denying the right of the plaintiffs over the su