JUDGMENT

This second appeal has been filed to set aside the order passed in A.S.No.14 of 2023 on the file of Subordinate Court at Rasipuram dated 21.10.2023 confirming the order passed in O.S.No.105 of 2010 on the file of District Munsif Court, Rasipuram.

2. The appellants are the defendants in O.S.No.105 of 2010 on the file of the District Munsif Court, Rasipuram. The respondents are the plaintiffs in the above suit. The respondents have filed the above suit for the following relief: 1) to declare the easementary right of the plaintiffs in the ABCDEF pathway shown in the plaint and for the consequential relief of permanent injunction.

3. The brief facts of the plaintiffs' case are as follows:-

(a) The property mentioned in the suit belonged to the plaintiffs and the pathway leading to the said properties are situated at Koonavelampatty village. The rough plan filed along with the plaint in which the properties of the plaintiffs are shown as "P, P1, P2" and the property of the defendants is shown as "D" and the suit pathway is shown as "ABCDEF". The survey numbers of P, P1 are 102/1 and 102/2 and the same belong to the plaintiffs 1 and 2 by virtue of an oral partition.

(b) According to the plaintiffs, the properties shown as P2 is situated in survey nos.101/2, 101/4 and 101/5 and the same belonged to the 3rd and 4th plaintiffs. The further contention of the plaintiffs is that the pathway to the width of 15 feet is running towards west from Koonavelampatty to Gurukkapuram north south thar road to the properties of the plaintiffs through the defendants property in S.No.102/3 on its northern side which is shown as "ABCDEF" in the rough plan. The said pathway is running up to Alavaimalai. The plaintiffs have access to their property only through the above said "ABCDEF" pathway. The said pathway is very old which connects Kolli hills and Sangagiri kottai. The said pathway is in existence for more than 100 years and the same is also mentioned in the revenue map. The plaintiffs and their ancestors and the predecessors in title have been using the said pathway for the past 74 years for taking their men, cattle, carts, etc. The plaintiffs have no other access except the suit pathway. The said pathway is running through the defendants land. Even before the purchase of the "D" property by the 1st defendant from the grandfather of the 3rd plaintiff namely Perumal Nadar, the father of the 1st plaintiff namely Kumaravel gounder, 2nd plaintiff and the said Perumal nadar entered into a pathway agreement on 17.07.1985 wherein it was agreed to give 10 feet land for pathway in their respective land and only after the said agreement, the first defendant purchased the property.

(c) The plaintiffs have perfected their right in the suit pathyway by easement by prescription by their continuous, long and open enjoyment. As the plaintiffs have no other alternate pathway, the plaintiffs are having right by easement of necessity also. The defendants have no right to obstruct the plaintiffs from using the pathway. The plaintiffs have attempted to create several obstructions in the suit pathway on several occasions for which the plaintiffs have preferred a police complaint. On 07.05.2010 when the plaintiffs were using the pathway to reach their property, the defendants obstructed them which was successfully averted by the plaintiffs with the help of neighbours. Hence, the plaintiffs were constrained to file the above suit to declare the rights of the plaintiffs in the suit pathway by easement by prescription and necessity and for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit pathway by the plaintiffs.

4. The defendants in their written statement denied the averments made in the plaint. According to the defendants "ABCD" portion of the plaint rough plan is situated within the survey no.102/3 which belonged to the defendants and not on the northern side of the defendants' property.

Therefore