K KOLANDAIDSAMI GOUNDER DECD Vs. MANICKAM

JUDGEMENT

(1.) 1. The unsuccessful defendant before the courts below has led these second appeals.

(2.) THE suit property among other properties originally belonged to one Thangammal. She settled her properties under Ex. A1 dated 6. 1. 1956 in favour of her three sons, namely, Sriranga Gounder , Ramasamy Gounder and the appellant.'a'schedule properties as shown in Ex. A1 were given to the said Sriranga Gounder , and Ramasami Gounder.'b'Schedule properties as shown in Ex. A1 were given to the 1st appellant/defendant. Sriranga Gounder and Ramasami Gounder divided the'a' schedule properties mentioned under Ex. A1 in and by partition deed marked as ex. A2 dated 6. 7. 1979. Under Ex. A3, dated 25. 10. 79, Sriranga Gounder sold his undivided portion to the plaintiff, as the said property was kept in common in spite of the partition deed under ex. A2. By a document marked as Ex. A4 dated 31. 10. 79, the said property was divided between the plaintiff and Ramasami. On the basis of the said partition deed, the plaintiff claims that he got a pathway right to an extent of 6 ft. width from north-eastern corner of the cattle she d leading to Idayanthottam Street. According to the plaintiff, the said right has been mentioned in the settlement deed under Ex. A1 itself. Stating that the defendant started objecting to the user of 6 ft. width pathway, the plaintiff filed the suit in O. S. No. 248 of 1980 on the file of the District Munsi f Court , Erode, seeking for a declaration declaring the plaintiff's right in the pathway marked in blue colour in the plaint plan and for permanent injunction.

(3.) AFTER hearing the arguments on both sides, the following substantial question of law is formulated for consideration:- "whether the courts below are correct in decreeing the suit in O. S. No. 1 169 of 1980 on the basis that the plaintiff is entitled to have drainage in the pathway as an easement of necessity. &quot ;