Inconsistent claims regarding easementary right and ownership over a common pathway can lead to the dismissal of the suit.

J U D G M E N T

1. The plaintiff in a Suit for declaration of easementary right of access over a common pathway and for a consequential mandatory injunction directing the defendant not to resist the plaintiff from demolishing the compound wall to provide access to his property, is the appellant.

2. The material facts that are necessary for deciding the above Second Appeal are hereunder:

The plaintiff claims to be the owner of the property situated in R.S.

No.274/40 at New Street (Old Iyyanar Koil Street), Thelarshpet, Puducherry – 9 to an extent of 30 / 60 feet. The plaintiff has constructed a two-storeyed house in the said property and originally the property was belonging to the joint family comprising of three brothers, namely, Thulasingam, Krishnaraj and Lakshmanan, sons of Mr. Narayana Gounder. There was a partition of the property amongst the three brothers and common pathways of 9'/90' on the southern side and 9'/70' on the western side, were provided to access the properties partitioned to enable access to the respective properties allotted to the three brothers. Further, the case of the plaintiff is that the said three brothers had converted their portions into house sites. One of the portions had a direct access to old Iyyanar Koil Street which was sold by Thulasingam, one of the brothers, to the plainff on 29.01.1976. According to the plaintiff, the remaining two plots were sold to Chitra and Ramasamy. The defendant's plot was just behind the plaintiff's property. The defendant has purchased his property from Thulasingam on 10.10.1988 and according to the plaintiff, ever since he purchased the property on 29.01.1976, he has provided a side door appurtenant to the southern side common pathway and has been using it ever since the purchase of the property and thereby he has acquired easementary right. As the defendant had purchased the property adjacent to the plaintiff's portion in 1988, subsequently both the plaintiff and defendant were enjoying the common pathway jointly. However, according to the plaintiff, in the 1st week of August 2007, the defendant attempted to block the pathway and prevent the plaitnff from accessing the same. In order to secure the pathway, the plaintiff attempted to break the compound wall, which was resisted by the defendant in the first week of August 2007. The plaintiff has issued a Lawyer's notice on 30.08.2007 to which, the defendant sent a reply on 06.09.2007 refusing the plaintiff's claim.

Hence the suit came to be instituted.

3. The defendant filed a written statement stating that the plaintiff was never in enjoyment of the alleged suit common pathway at any point of time; the plaintiff had direct access from New Street (Old Iyyanar Koil Street); and in the sale deed executed by one of the brothers, Thulasingam in favour of the defendant, it has been specifically stated that pathway running west to east of the Southern side of the plaintiff's property reaching New Street (Old Iyyanar Street) on the Eastern side, belongs only to the other two brothers, Krishnaraj and Lakshmanan and the defendant.

4. According to the defendant, the compound wall has been constructed in 1989 and has been in existence for more than 19 years and at no point of time, the plaintiff sought to exercise his easementary right or any other right alleging that the plaintiff was also entitled to a share and right in the common pathway. The defendant therefore sought for dismissal of the suit.

5. The Trial Court decreed the suit declaring the plaintiff's easementary right over the suit measuring 9 / 90 feet and also granted a mandatory injunction to restrain the defendant from resisting the plaintiff from demolishing the compound wall, in order to gain access to the common pathway from the southern side of the plaintiff's property.

6. The defendant preferred an appeal in A.S. No.14 of 2013. In the appeal, an Advocate Commissioner was also appointed and he has filed a report. However, the Advocate Commissioner has stated th