R PRABAKARAN Vs. AMBUJATHAMMAL

JUDGEMENT

(1.) Aggrieved over the refusal of the relief in respect of easementary right by both the Courts below, the plaintiff has brought forth this second appeal.

(2.) The plaintiff filed the suit seeking for a declaration that there is a pathway in the properties of the defendants, shown as C,D,F,F1, C,E,F, M, N, F1, G, H, I, J, K, L1, M in the plaint plan to reach his lands called Chekkadi Kollai, for a manda injunction for the removal of the obstructions made therein, for a declaration of his right to draw water from the well shown in the second item of property and for permanent injunction that the defendants should be restrained from interfering with his right. It was alleged by the plaintiff that the suit property originally belonged to one Ramasamy Chettiar, and on his death, it devolved upon his son Chidambaram Chettiar; that on his death, his three sons, Ramasamy Chettiar, Kandasamy Chettiar and Nat araja Chettiar made a division of their family properties on 11.3.1930 under Ex.A6; that in that partition deed, a passage with a width of 5 feet was left for the use; that the said passage has all along been used; that even in the partition deed, it has been specifically recited that the father and three sons should have the use of the said property as commonly left passage; that in that deed of partition, some of the properties in 'A' Schedule property were in the hands of the first defendant by way o f purchase, while 'B' Schedule property was allotted to Ramasamy Chettiar, 'C' Schedule to Kandasamy Chettiar and 'D' Schedule to Nataraja Chettiar; that the said Ramasamy Chettiar conveyed all the properties except the said Chekkadi Kollai; that the thi rd defendant is the son of the said Nataraja Chettiar; that the plaintiff purchased the said Chekkadi Kollai from one Renganatha Iyengar, the predecessor-in-title, by a sale deed dated 17.1.1983; that even during the life time of Chidambaram Chettiar and his sons and also during the enjoyment of the property by Renganatha Iyengar, the said passage referred to above, was being used to reach the main road; that there is no other alternative pathway; that as an easement of necessity, the said pathway has b een put to long user; that while so, the first defendant has raised the obstructions at CD and FF1 points; that the second and third defendants have also obstructed the said passage at C, E, F, G, H, I, J, K, L,M,N,T, and hence, there arose a necessity f or filing the suit for declaration and mandatory injunction also in that regard; that insofar as the second item of property, the well was being used by the plaintiff all along, and thus, he wanted to have a declaration of his right and permanent injunct ion restraining the defendants not to interfere in the same.

(3.) The suit was resisted by the defendants inter alia stating that there was no passage as put forth in the plaint, at any point of time; that the passage was never used by either Chidambaram Chettiar or his sons or Renganatha Chettiar; that even in sale deed, executed in favour of Renganatha Chettiar, there is no mention of this passage; that apart from that, there was an alternative pathway, and hence, the suit was to be dismissed.