BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.06.2019 CORAM:

THE HONOURABLE MR.JUSTICE S.S.SUNDAR S.A.(MD)No.251 of 2019 Dhanalskshmi ... Petitioner Vs.

1.Uma Maheshwari

2.Sankaran ... Respondents Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, to call for the records and set aside the judgment and decree, dated 07.03.2017 in A.S.No.26 of 2016 on the file of the Additional District Court (FTC), Kumbakonam, confirming the judgment and decree, dated 18.02.2016 in O.S.No.46 of 2011 on the file of the Additional Subordinate Court, Kumbakonam.

For Petitioner :Mr.H.Lakshmi Shankar For Respondents:No appearance ***

JUDGMENT

The plaintiff in O.S.No.46 of 2011 on the file of the Additional Subordinate Court, Kumbakonam, is the appellant in the present second appeal.

2.The appellant filed the suit in O.S.No.46 of 2011 before the Additional Subordinate Court, Kumbakonam, for declaring her right of pathway over the suit 'B' schedule property and for permanent injunction restraining the respondents herein from in anyway interfering with the appellant's right of pathway over the suit 'B' schedule property. The suit is also for mandatory injunction to direct the respondents/defendants to remove the newly constructed compound wall constructed in suit 'B' schedule property.

3.The suit 'A' schedule property admittedly belongs to the plaintiff. The suit 'B' schedule property is stated to be a pathway, measuring East-West 10 feet and North-South 31 feet. Admittedly, the suit 'B' schedule property is the property fall within R.S.No. 417/32 and 417/7A in Semmangudi Village, Kumbakonam Taluk, Mayiladuthurai and it belonging to the first defendant. The second defendant is the father of the first defendant.

4.Stating that the plaintiff is entitled to use the pathway, suit 'B' schedule property to have access to her property, namely, suit 'A' schedule property and that it is the only pathway available to reach her property in suit 'A' schedule property, the appellant sought for declaration of her easementary right over the suit 'B'

schedule property and other consequential reliefs.

5.The suit was contested by the defendants, specifically denying the averments made in the plaint, as regards the easementary right of plaintiff, as claimed in the plaint. It is the specific case of the defendants that the suit pathway, which is described as suit 'B' schedule property, is not in existence, as the entire property of the defendants is covered by superstructure. It was also stated that the plaintiffs have got other pathway to reach her property and that therefore, the plaintiff cannot claim right of easement of necessity. The defendants also refuted the further case of the plaintiff, as to the enjoyment and existence of pathway and her entitlement as prayed for in the suit.

6.During the pendency of the suit, an Advocate Commissioner was appointed and he has filed a report along with plan. As per the report, the Advocate Commissioner pointed out that there is an alternative pathway available for the plaintiff to reach her property in suit 'A' schedule property and there is no pathway in existence, as contended by the plaintiff. Based on the Commissioner's report and plan, the trial Court dismissed the suit specifically holding that there is an alternative pathway and that the plaintiff is not entitled to claim easement of necessity, even though alternative pathway, according to her, is not convenient for her. The existence of the pathway being disputed by the defendants, the trial Court also found that the plaintiff is not entitled to any relief in the suit, as the plaintiff failed to prove either existence of pathway or enjoyment by plaintiff on ground.

7.Aggrieved by the judgment and decree of the trial Court, the plaintiff/appellant preferred an appeal suit in A.S.No.26 of 2016 before the Additional District Court, Kumbakonam. The lower appellate Court also dismissed the appeal after confirming the findings of the trial Court. Aggrie