J U D G M E N T

Aggrieved over the reversal of the judgment and decree passed by the Trial Court, by the First Appellate Court, the appellant has preferred the above Second Appeal.

2.For the sake of convenience, the parties are called as per their ranking in the Suit. During the pendency of the Second Appeal, the sole appellant/plaintiff died and her legal representatives are brought on record.

3.According to the plaintiff, the plaintiff has derived title to the suit property through the WILL executed by her husband on 27.12.1964. The new survey number of the property is S.F.2 and later sub-divided as S.F.Nos.2/1, 2/2, 2/3 and 2/4. The plaintiff sold four acres of land in S.No.2/1 in favour of the defendants by virtue of two registered sale deeds dated 10.02.1982. Even before that, she sold four acres of land in S.Nos.2/3 and 2/4 in favour of one Sennimalai Gounder. The defendants and the said Sennimalai Gounder were using the Cart Track lying between their properties and enjoying the same without any issues. The Cart Track shown on the west of point “H” in the plan annexed to the plaint extensively belongs to the plaintiff and the defendants do not have any right over the Cart Track from the point “H”. On 03.03.2004, the plaintiff filed an application for survey to determine the boundaries. After issuing notice, the Surveyor measured the properties and erected stone pillars and put wire fence on the boundaries, which was marked as ABCD in the plan annexed to the plaint. The plaintiff had fenced the boundaries with barbed wire and stone pillars. On 26.03.2004, the defendants have threatened to damage the stones and remove the barbed wire fence on the ill-advice of the enemies of the plaintiff. Hence, she filed a Suit for permanent injunction restraining the defendants form damaging or removing the fence from her land.

4.Denying the claim of the plaintiff, the defendants would state that by virtue of the sale deed dated 10.02.1982, the plaintiff has granted easementary right in respect of the Cart Track belonging to her on the western side of their property to a width of 24 links running south north track of the plaintiff. In violation of the grant, the fence has been put up by the plaintiff. The plaintiff is estopped from denying the easementary right of the defendants by grant.

5.The Trial Court appointed an Advocate Commissioner to find out the physical features and the Advocate Commissioner in his report would state that there exist a 15 feet width of land having Coconut trees on both sides of the borders, but the surfaces were uneven and there was no trace of usage in the near past 20 years. 6.The Trial Court framed the following issues:- (1) whether the plaintiff is entitled to permanent injunction as prayed for ?

(2) whether the Suit is bad for non-joinder of the necessary party ?

(3) Whether the plaintiff is estopped from denying the easementary right?

(4) Whether the defendants have got easementary right of path over the suit property?

(5) Whether the defendants are entitled to mandatory injunction prayed for both of them.

7.After holding that as Exs.B1 and B4, the sale deeds executed by the plaintiff in favour of the defendants, the right of easement is granted by the plaintiff in favour of the defendants, it was found that the easement is extinguished due to the non-user for past near 20 years as per Section 47 of the Indian Easements Act, 1882. Hence, the Trial Court decreed the suit in favour of the plaintiff and rejected the counter claim by the defendants. On appeal, the First Appellate Court reversed the finding on the ground that the easement by grant will not get extinguished merely because the co-sharer has an alternative way. It was held that the defendants are entitled to the easementary right forever and granted the relief of mandatory injunction in favour of the defendants.

8.Aggrieved over the same, the plaintiff has preferred the above Second Appeal on the following substantial questions of law:-

"1.Whether the le