To establish an easement of necessity, there must be common ownership and impossibility of enjoyment of one tenement without the other; mere lack of alternative access is insufficient.

JUDGMENT :

P.B. BALAJI, J.

1. The unsuccessful plaintiffs before the trial Court as well as the first appellate Court, in a suit for Declaration of Easementary Right, are the appellants herein. The parties are described as per their litigative status in the suit. The pleadings in summary, in order to appreciate the respective contentions of the parties and in order to adjudicate the above Second Appeal, are as follows:

(i) The plaintiffs stated that the suit property described in schedule “A”, originally belongs to one Raji Naicker, who had purchased the same under two registered sale deeds dated 05.02.1927 and 27.05.1937, along with one another property. The said Raji Naicker was blessed with a son by name Balaraman Naicker and daughter Kasi Ammal. The suit property, according to the plaintiffs, was allotted to Balaraman Naicker and the adjacent property was allotted to Kasi Ammal. After the demise of Balaraman Naicker, the suit property was transferred to his wife viz., Mrs,Rupavathi Ammal. The plaintiffs claim to be grand sons of Balaraman Naicker and Rupavathi Ammal, through their son Ranganathan. According to the plaintiffs, their grandmother, Rupavathi Ammal had executed a registered Will dated 27.12.2000, bequeathing the suit “A” schedule property to the plaintiffs. The said Rupavathi Ammal died on 28.02.2007 and her last Will dated 27.12.2000 became operational and the plaintiffs became the absolute and exclusive owners of the suit “A” schedule property. The plaintiffs have taken steps to transfer patta in their name and the same is pending with Revenue Divisional Officer.

(ii) According to the plaintiffs, the defendant had purchased the adjacent properties on the northern and western side of the suit “A” schedule property and that the defendant is running a College under the name and style of “Academy of Maritime Education and Training”.

(iii) The plaintiff's specific case is that the suit “A” schedule property and all adjoining properties are all agricultural lands, however, the defendant has converted usage of the property into commercial purposes, but the plaintiffs are using “A” schedule property only for agricultural purposes.

(iv) The plaintiffs' specific case is that on the western side of the suit property, there is a canal road, which runs from East Coast Road and leads to the village and that from the said canal road, a cart track is running towards East Coast Road on the northern side of the “A” schedule property and only through the said cart track, the plaintiffs and other adjacent land owners bring agricultural materials and labourers too use the said cart track.

(v) The suit “B” schedule property is the path way, which is situate on the western side of the suit “A” schedule property. According to the plaintiffs, the “B” schedule pathway is the only ingress and egress for the plaintiffs to their “A” schedule property and there is no other alternative way to reach “A” schedule property. Depriving the usage of the said cart track, the defendants raised a compound wall by annexing “B” schedule property and in the first week of July 2007, the plaintiffs visited the suit property, they found the offending construction and therefore, they have filed the suit to declare “B” schedule property as common pathway and also for mandatory injunction to demolish the compound wall put up by the defendant in “B” schedule property. However, in the plaint the prayer that has been sought for is as hereunder:

(a) declare the Easementary right of “B” Schedule mentioned property as common pathway.

(b) for mandatory injunction directing the defendants to demolish the compound wall put up in the “B” Schedule mentioned property.

2. The defendant filed a written statement and resisted the suit contending that they are not aware of the claim to right and title of the plaintiffs and put the plaintiffs to strict proof of the tracing of title, right from Raji Naicker to Rupavathi Ammal and also from Rupavathi Ammal, under whom the plaintiffs cl