JUDGEMENT

This Second Appeal is preferred as against the Judgment and Decree dated 05.04.2002 made in A.S.No.2 of 2002 on the file of the Additional District Court No.IV / Fast Track Court No.IV, Bhavani, confirming the Judgment and Decree dated 24.10.2000 made in O.S.No.698 of 1995 on the file of the Principal District Munsif Court Bhavani.

2.The appellant herein is the plaintiff and the respondents herein are the defendants in the suit.

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

4.The case of the plaintiff is that the plaintiff purchased the vacant house site in R.S.No.351/2 with specific boundaries on 01.11.1982 from one Kuppusamy. The plaintiff's predecessors in title have been using the suit car- track from south to north as an access. The plaintiff filed a sketch showing the topography of the land, wherein he has marked the suit cart-track as A,B,C,D. The plaintiff had claimed that he has been using the cart- track as ingress and egress from Bhavani to Komarayanoor main road. The plaintiff constructed a titled houses in the vacant site purchased in R.S.No.351/2 in the year 1993 and he has been paying house tax to the panchayat. The defendants are the owners of the land in R.S.No.347/2 which situates eastern side of plaintiff's land. The further case of the plaintiff is that the suit cart-track is being enjoyed by him as easementry right by long user prescription and necessity. Further, he claims that there is no other way to reach his house and since the defendants are preventing the plaintiff from using the cart-track, the plaintiff has filed the suit in O.S.No.698 of 1995 on

25.10.1995 for declaration and permanent injunction.

5.The case of the defendants is that the defendants 2 and 3 owns ancestral properties in R.S.Nos.347 and 345 apart from other lands. As the said lands are abutting the road, there is no necessity for a separate cart- track to reach their lands till 1992. On 14.05.1992, the defendants 2 and 3 effected a registered partition of R.S.No.347 and other properties by which the entire R.S.No.347/4 and a small extent of land in R.S.No.347/2 was allotted to the 3rd defendant. The 2nd defendant was allotted with the remaining land in R.S.No.347/2 and R.S.No.345. Subsequently, a cart-track to a width of 12 feet was laid in the eastern side of R.S.No.347/4 and a right of way was given to the 2nd defendant to access his lands since the lands allotted to the 2nd defendants were cut off from the road and that cart-track has been claimed by the plaintiff and it was denied by the defendants since it was not in existence prior to 1992. It is the further case of the defendants that the plaintiff has an alternate way to reach his house and his vendors also does not use the suit cart-track. Hence, the plaintiff has no legal right to claim usage of the cart-track.

6.Before the Trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A1 to A5 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B7 were marked and on behalf of the Court, Exs.C1 and C2 were marked.

7.After hearing both the parties, the Trial Court dismissed the suit on the ground that, as per Ex.C1, the plaintiff claims right over the cart-track only for the convenience and he has not proved that he has been enjoying the cart-track for more than 12 years.

8.Aggrieved over the said judgment and decree passed by the Trial Court on 24.10.2000 made in O.S.No.698 of 1995, the plaintiff preferred an appeal in A.S.No.2 of 2002. On behalf of the plaintiff Exs.A6 and A7 were marked before the First Appellate Court.

9.The First Appellate Court after hearing both the parties, dismissed the appeal holding that the suit cart-track was just a mule-track and not an ancient one and there is no evidence for the usage of cart-track over a period of time prescriptive. Further, the Court below held that the evidence of P.W.1 was not corroborated by any other witnesses and there i