J U D G M E N T

In this Second Appeal, challenge is made to the judgment and decree dated 17.08.2012 passed in A.S.No.29 of 2010 on the file of the Subordinate Court, Dharampuram, confirming the judgment and decree dated 26.07.2010 passed in O.S.No.512 of 2007 on the file of the District Munsif Court, Dharapuram.

2. The Second Appeal has been admitted on 01.03.2022 on the following substantial questions of law:

a) Whether both the Courts below erred in relying upon the report of the Advocate Commissioner to come to a conclusion that there is no alternative pathway available to the plaintiff to reach the highways from his property?

b) Whether the Courts below failed to appreciate the fact that the right of pathway claimed by the plaintiff by itself may not be a ground to cancel the assignment patta that was granted by the 1st and 2nd defendant in favour of the 3rd defendant, since it involves only a right of use of pathway and not a right over the property belonging to the 1st and 2nd defendants?

c) Whether the findings of both the Courts below can be termed as perverse due to improper appreciation of oral and documentary evidence that was available in record?

3. The deceased appellant Subbukutti was the third defendant in the suit in O.S.No.512 of 2007 filed by the first respondent herein, for the relief of declaration, permanent injunction and mandatory injunction in respect of using the public cart track in S.F.No.552/2 and 552/5 to reach his land in S.F.No.552/1C, 552/1A from Dharampuram to Tiruppur Main Road. The third defendant is a private individual who denied the existence of poramboke cart track in S.F.Nos.552/2 and 552/5, on the other hand, he claimed that the said poramboke land was under the enjoyment of his family members for more than 100 years and they enjoyed the said poramboke land along with the lands in S.F.Nos.552/3A and 552/3C and in the year 2007 only, he came to know that the said poramboke land was classified as cart track as per the Revenue Records. He approached the Revenue authorities to purchase the said property by paying the Government value and accordingly, the Tahsildar, Dharapuram/second defendant, on 20.03.2007 sold the said poramboke land in his favour by receiving Rs.14,400/- as sale consideration and thereby, he became the owner of the property and the same was purchased as per the Revenue rules and in which the plaintiff has not owned any property adjacent to the alleged poramboke land, thereby, he prayed to dismiss the suit.

4. Before the trial court, both the parties adduced oral and documentary evidence. In support of the plaintiff's case, P.Ws.1 and 2 were examined. Exs.A1 to A 3 were marked. On the side of the defendants, D.W.1was examined. Exs.B1 to B14 were marked and on considering patta, sale deed and the proceedings of the Tahsildar, the trial court held that the suit property belongs to the plaintiff and adjacent to his land, there is a poramboke cart track in S.F.Nos.552/2 and 552/5 and therefore he is having the right to ingress and egress to reach Thiruppur to Dharampuram Main Road. Accordingly, relief of declaration as prayed for by the plaintiff was granted. The learned Trial Judge also held that the Revenue Authorities have no right to assign the poramboke cart track in favour of private individual/third defendant, even by receiving the sale consideration as such, which is invalid under law and thereby the said proceedings were cancelled by way of of mandatory injunction and thus the suit was decreed as prayed for by the plaintiff.

5. Aggrieved by the said findings of the trial Court, the third defendant preferred an appeal in A.S.No.29 of 2010 on the file of the Subordinate Court, Dharapuram, wherein, the learned Appellate Judge analysed the facts and evidence independently and held that the plaintiff is entitled to reach Thiruppur to Dharapuram Main Road from the poramboke cart track to reach his property, as he has no other access except under the easement of necessity and th