GNANA PRAKASI Vs. DEVADHASON NADAR AND ANR.

JUDGEMENT

(1.) THE second defendant is the appellant. The plaintiff filed the suit in a representative capacity for a declaration that the plaintiff and the other villagers of Amarathivilai, Marungoor Village have a right of way in the site marked ABCDEFG in the plan attached to the plaint and for an injunction. The defendants denied the right claimed by the plaintiff and villagers. The learned District Munsif held that the pathway was in existence for a long time and passed the decree as prayed for excluding the portion X Y Z marked in the plan attached to the decree. Defendants preferred an appeal and the 2nd defendant preferred a Second Appeal to this Court in S.A. No. 1045 of 1962. This Court confirmed the decree and judgment of the Court below except in so far as it related to the easementary right on the west of the two houses M.P. Nos. 1/543 and 1/542. In regard to this portion the decree was set aside and the matter was remanded to the Court below for fresh disposal on the question of easementary right. The point that was directed to be decided was that whether the easementary right of way claimed by the plaintiff was shown to be a user as of right over the statutory period. After the remand, the lower appellate Court has come to the conclusion that the plaintiff and the other villagers had been using this site as of right for more than 50 years and accordingly decreed the suit as prayed for. The 2nd defendant has again come up to this Court with this Second Appeal.

(2.) THE learned Counsel for the appellant tried to argue that there could not be any easementary right of way in a. fluctuating body of villagers as in this case and relied on the decisions in Chinnaswami Pillai v. Syed Kuthbisha Durga, (1955) 1 M.L.J. 150 and Braja Sundar Deb v. Moni Behara : [1951] 2 SCR 431. The decision reported in Chinnaswami Pillai v. Syed Kuthbisha Durga, (1955) 1 M.L.J. 150, related to a claim of title. It was held in that decision that in the absence of continuous, open and exclusive possession as of right and in persons who could be said to derive title from one another, (and not, as is this case in a fluctuating body of persons like -the Hindu inhabitants of the village), the plaintiff's right cannot be upheld on title by lost grant or prescriptive title by adverse possession. In the same case it was held that because of the long user the plaintiffs were entitled to have the site free from its being utilised in any other -way and they were entitled to conduct the festivals and granted injunction. The decision in Braja Sundar Deb v. Moni Behara : [1951] 2 SCR 431, related to a case of lost grant. In the present case the plaintiff did not claim title to the suit site. What he contended for is a customary easementary right of way over the suit property. Such a right could be established is well -settled. There are no merits in the Second Appeal and it is dismissed with costs. No leave.