J U D G M E N T

The 1st defendant in the suit is before this Court in this second appeal.

Pending appeal, the 1st defendant/sole appellant died and therefore his legal heirs are brought on record as appellants A2 to A6. The plaintiff in the suit is the 1st respondent herein. The 2nd defendant is the 2nd respondent.

2. This second appeal has been filed challenging the judgment and decree dated 28.07.2004 made in A.S. No. 70 of 2003 on the file of the Sub Court, Tirupattur, Vellore District reversing the judgment and decree dated 26.09.2003 made in O.S. No. 221 of 1997 on the file of the District Munsif Court, Ambur, Vellore District.

3. For the sake of convenience, the parties are referred as per the ranking before the trial Court.

4. According to the plaintiff, the suit property originally belonged to one K.S. Subramaniam who settled the property to his daughter Patchaiyammal through a registered settlement deed dated 05.07.1947 marked as Ex.A1. There upon the said Patchaiyammal was in possession and enjoyment of the property. Thereafter, the plaintiff purchased the suit property from the said Patchaiyammal and others by means of registered sale deed on 30.01.1995 marked as Ex.A2 and in pursuance of the sale deed, the patta and revenue document have been mutated in her favour. It is the further case of the plaintiff that she purchased the property in Ex.A2 in which, the cart-track was omitted by document writer which was subsequently made good. The cart track was in existence and usage by the vendor's vendor. The vendor Patchaiyammal and her heirs had accepted the mistake that the sale deed executed is without describing the pathway which they were using for more than 45 years, by means of another sale deed. 5. According to the plaintiff, there is no other pathway to reach her land and it is an easement of necessity. While so, the defendant who was a recent purchaser on 22.05.1997 under Ex.B2 started to obstruct the pathway which the plaintiff is entitled to use for the purpose of taking bullock cart and vehicles. Later in view of the technical objections made by the 1st defendant, they have impleaded the 2nd defendant who is the adjacent owner and filed the suit claiming declaration to declare the easementary right of the plaintiff in respect of the suit pathway/ cart-track and for permanent injunction.

6. The defendant has resisted the suit by filing written statement stating that the plaintiff is not entitled to the relief claimed in the suit as the cart-track was not in existence and it is only an imagination of the plaintiff. The plaintiff has not given the length and breath of the cart-track, boundaries of the cart-track and survey number on which the cart-track is available. According to the defendant the framing of the suit as such is not maintainable under law since the plaintiff claims right to cart-track as easement of necessity and she should have sought relief of easementary right and title to cart-track. It is the specific case of the defendant that there is no cart-track either in the village natham in Survey No.177/4 or Village Natham in Survey No.177/5.

7. After the written statement was filed, the plaintiff had amended the plaint seeking to declare her easmentary right in respect of the suit cart track.

8. Subsequent to the amendment of the plaint, the defendant has filed additional written statement stating that the plaintiff has not stated the date from which she is in enjoyment of the easementary right, especially when the suit is filed for declaration of the easementary right to the cart-track and therefore prayed for dismissal of the suit.

9. During trial, the plaintiff examined herself as P.W.1 and four other witnesses P.W.2 to P.W.5. were examined and Ex.A1 to A8 were marked. On the side of the defendants, the 1st defendant examined herself as D.W.1 and four witnesses D.W.2 and 5 were examined and Ex.B1 to B8, documents, were marked. Further Ex.X1 and X2 were marked as court documents.

10. The trial court after