ORDER

The Second Appeal has been preferred as against the Judgment and Decree of the learned Subordinate Judge, Rasipuram dated 10.04.2015 in A.S. No.8 of 2014 confirming the Judgment and Decree of the learned District Munsif, Rasipuram dated 08.04.2013 in O.S. No.214 of 2010, wherein the respondent herein has filed an Original Suit in O.S. No.214 of 2010 on the file of the learned District Munsif, Rasipuram for the relief of declaration and permanent injunctin and the said Suit was dismissed in respect of declaration and the Suit was decreed in respect of permanent injunction. Aggrieved by the said decree and judgment, the defendant had preferred an appeal before the I Appellate Court i.e., Subordinate Court, Rasipuram and the same was dismissed. Aggrieved by the said decree and judgment, the present Second Appeal has been preferred by the defendant.

2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the Trial Court.

3. The brief averments of the Plaint before the trial Court are as follows:

The Suit property originally belongs to the Plaintiff through a Settlement Deed dated 18.06.1997 and the Plaintiff is in enjoyment and possession of the property. The defendant is having property on the western side of the Plaintiff’s land and the defendant purchased the property through a Sale Deed dated 27.02.1992. The defendant purchased the property excluding cart track which is on the Southern side of the defendant’s land. There is cart track runs from Vaiyappamalai Road towards Eastern side and on the Southern side in Survey No.36/1C and again, it runs on the Northern side and runs on the Western side of Survey No.51/1C and 35/5 and on the Eastern side of Survey No.35/3. The said cart track is in breadth of 15 feet from the Road. The cart track is mentioned as Iitteri in all the Sale Deeds. While so, the said cart track is common for all the adjacent land owners. Now the defendant is claiming title of the cart track. On 26.10.2010, the defendant along with rowdy elements came to the property and tried to obliterate the existing cart track and also planted coconut trees upto his boundary and on the southern side of the coconut trees, the cart track runs towards East. Therefore, it is required for the Plaintiff as ‘easement of necessity’. Therefore, the Plaintiff has filed the Suit for declaration and for permanent injunction.

4. The brief averments of Written Statement filed by the 1 s t defendant are as follows:-

The Suit filed by the Plaintiff is false and not maintainable either in law or on facts. The Plaintiff has to prove all the averments made in the Plaint, except those that are specifically admitted by the defendant. It is true that the defendant purchased the property through a Sale Deed dated 27.02.1992 and it is not correct that excluding the cart track situated on the southern side, the property was purchased. In fact, the defendant purchased the property through a Sale Deed dated 27.02.1992. At the time of purchased of the property, there was no any pathway in existence and he purchased the entire property for valuable consideration. The Survey No.36/1c is exclusively belonging to the defendant. After purchase of the property by the defendant, there was no any pathway as alleged in the Plaint. The Plaintiff is using the pathway from Aattayampatti Main Road to Purasalpatti Road. The defendant is also using the said Road to access his property and there is no pathway in existence in S.F. No.36/1C. Already the Suit in O.S. No.200/2010 was filed, in which, an interim order was obtained. Suppressing the same, the present Suit has been filed by the Plaintiff. Therefore, the Suit is liable to be dismissed.

5. Based on the above said pleadings and upon hearing both sides and perusing the documents, the trial Court had framed the following issues:

(i) Is it true that there is no pathway available in S.F. No.36/1C and the Plaintiff trespassed in the property and creat