A claimant of a right of way must demonstrate the existence of such a right established by proper title deeds and evidence of usage.

JUDGMENT

Challenge in this second appeal is made to the Judgement and Decree dated 22.04.2009 made in A.S.No.93 of 2008 on the file of the Principal Sub Court, Salem, reversing the judgment and decree dated 26.03.2008 made in O.S.No.489 of 2001 on the file of the Principal District Munsif, Salem.

2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court.

3.The defendants in O.S.No.489 of 2001 on the file of the Principal District Munsif, Salem are the appellants herein.

4. The case of the plaintiffs, in brief, is that the properties in T.S.Nos.3, 4/4, and 5 are originally belongs to the plaintiffs, by way of purchase through two separate sale deeds. The defendants are the owners of the property, which is situated on the eastern side of the suit items 1 and 2 of the properties and they are also owners of T.S.No.6 situated on the southern side of T.S.No.5. There is a pathway on the eastern side of the T.S.Nos.3, 4 and 5 and the same belong to these defendants. There is a pathway on the northern side of T.S.No.6, which is also in continuation of the pathway on either side, as shown in the rough plan. The portion of the pathway in T.S.No.6 is running on northern side of T.S.No.6 is intended to reach T.S.No.5 and T.S.No.4/4. It is the only means to reach the plaintiff's property in T.S. Nos.5 and 4/4. The 2nd plaintiff constructed compound wall on the eastern side of T.S.No.3. At the time, for the convenience to reach the pathway in T.S.No.2, the father of the defendants requested the plaintiffs to leave some space and reciprocally the defendants permitted to use the said pathway. Accordingly, the plaintiffs putting up compound wall by leaving some space on the eastern side of T.S.No.3. Whilso, the defendants 3 to 5 during the absence of the plaintiffs, encroached the four feet pathway by putting up bath room and toilet. The same was objected by the plaintiffs. Due to the dispute, defendants had not allowed the plaintiffs to use the pathway. So, the plaintiffs also decided to put up compound wall in their properties. However, the same was prevented by the defendants. To prove his title and the extent of the property, the Commissioner was appointed and facts have been proved through the Commissioner Report and plan. Thus, he filed a suit.

5.The defendants contested the suit, denied the allegations in the plaint and filed a written statement and denied the reciprocal agreement as alleged by the plaintiffs, in respect of usage of the pathway in T.S.No.2.The plaintiffs have not left any space for usage on the eastern side of their properties in T.S.No.3 and only upto their portions, they have constructed a compound wall. That apart, the defendants also denied the plaintiffs' right over the four feet pathway on the northern side of T.S.No.6. The defendants submitted that the vendor of the plaintiffs have not conferred any right to the said pathway. Therefore, plaintiffs have no right over the pathway. The commissioner failed to measure the property properly. Thus, prays for dismissal of the suit.

6.On the basis of the abovesaid pleas set out by the respective parties, the following issues were framed by the trial Court for consideration:

“1) Whether the plaintiffs left some space on the eastern side in T.S.No.3, T.S.No.4/4 and T.S.No.5 and put up a common wall away from the boundary and there is any reciprocal agreement as alleged?

2) Whether the plaintiffs left some space on the southern side of T.S.No.5 as alleged?

3) Whether rough plan is correct or not?

4) Whether the plaintiffs are entitled for the injunction relief as to the construction of compound wall eastern side of the T.S.No.3, T.S.No.4/4 and 5?

5) Whether there is any common way in T.S.No.6 and the plaintiffs are entitled for the some as alleged?

6) Whether the defendants encroached the common pathway in T.S.No.6 also in the land in T.S.No.5 to the extent of 21' length and 8' width as alleged?

7) Whether the plaintiffs are entitled for mandato