IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.11.2023 CORAM THE HONOURABLE MR. JUSTICE S.SOUNTHAR S.A.No.755 of 2017

1.Jayapal

2.Karunakaran

3.Punitha ...Appellants Vs.

Agila Ammal ...Respondent PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree dated 29.04.2017 passed in A.S.No.31 of 2014 by the Sub-ordinate Judge, Dharmapuri confirming the judgment and decree dated 24.02.2014 passed in O.S.No. 195 of 2002 by the District Munsif, Dharmapuri.

For Appellants : M/s.Arun Anbumani For Respondent : No appearance

J U D G M E N T

The unsuccessful defendants in the suit are the appellants. The respondent herein filed a suit seeking declaration of easementary right over the suit ABCD pathway and for consequential injunction restraining the appellants from interfering with her right of user over the ABCD pathway. The Trial Court decreed the suit as prayed for and the first appeal filed by the appellants was also dismissed. Aggrieved by the concurrent findings, the appellants have come up before this Court by way of this second appeal.

2. It is the case of the respondent that the house property was settled in her favour by one Chikkanna Gounder by settlement deed dated 08.08.1996 marked as Ex.A1. It is the specific case of the respondent that property was settled together with easementary right of user over the ABCD pathway. It is also averred by the respondent that the suit ABCD pathway has been used to reach her house and the appellants herein attempted to interfere with her right to use the said pathway. Hence, she was constrained to file a suit seeking declaration of easementary right over the suit ABCD pathway and for consequential injunction.

3. The appellants herein filed a written statement and denied the easementary right claimed by the respondent. Further, the specific case of the appellants is that neither the respondent nor her predecessor in title ever used the suit property as an access to their property. It was also alleged that the respondent has got an alternate poromboke pathway and the same had been used as an access to her property for all these years. The appellants claimed that suit pathway has been used by them exclusively and they have been in possession and enjoyment of the same and consequently sought for dismissal of the suit.

4. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the suit property has been used as a pathway by the respondent for more than 20 years and consequently, the respondent was entitled to the prayer sought for in the suit. Aggrieved by the same, the appellants preferred first appeal in A.S.No.31 of 2014 on the file of the learned Sub-Ordinate Judge, Dharmapuri. The First Appellate Court also confirmed the findings of the Trial Court. Aggrieved by the concurrent findings, the unsuccessful defendants have come before this Court by way of second appeal.

5. Based on the arguments advanced by the learned counsel for the appellants, the following substantial questions of law are formulated for consideration in this second appeal.

“1. Whether the Courts below are justified in declaring the easementary right by prescription when there was no plea by the respondent seeking easementary right by prescription.

2. Whether the judgments of the Courts below are vitiated when respondent sought for declaration of easement by necessity, the Courts below granted declaration of easementary right by prescription”.

6. The learned counsel for the appellants vehemently contended that the respondent/plaintiff sought for declaration of easement by necessity. She never pleaded easement by prescription. However, the Courts below assumed that respondent sought for easementary right by prescription and granted a decree. Therefore, it is the contention of the learned counsel for the appellants that when there is no plea in support of easementary right by prescription, the judgments rendered by the C