PALANISWAMI NAICKER Vs. CHINNASWAMI NAICKER

JUDGEMENT

(1.) THE defendant is the appellant in this second appeal. Both the Courts below described the suit as a suit for declaration and mandatory injunction. But, on a fair reading of the plaint, it is clear that the plaintiff asked for a declaration that he is entitled to use the pathway in question for taking his cart, cattle etc., and consequentially asked for a permanent injunction restraining the defendant or his men from obstructing such user by the plaintiff of the suit pathway. In effect, therefore, the suit is for a declaration of right to use the suit pathway. Learned Counsel for the appellant took me through paras, 5, 6, 7 and 8 of the plaint to show that the relief asked for by the plaintiff is one for a declaration that he is entitled to an easement or right of way within the meaning of Section 15 of the Easements Act and that in substance and in the appellant.

(2.) THE plaintiff purchased the property marked ABCDE in the sketch annexed to the plaint under Exhibit A -4 dated 23rd June, 1932. In this document an express mention is made that the plaintiff and his successors in interest are entitled to a right of ingress and egress over the suit property DCKMLGH in the sketch. The plaintiff's predecessor -in -interest, however, purchased this very property ABCDE under the sale deed Exhibit B -2, dated 24th March, 1994, wherein no mention is made about the suit pathway DCKMLGH. It is however alleged in the plaint that the plaintiff's predecessor -in -interest as well as the plaintiff were using the pathway DCKMLGH, which will he hereinafter referred to as the suit pathway, for taking out their cattle from the property ABCDE. In fact, the plaintiff, in his plaint as well as by oral evidence, sought to establish that his claim to use and to have a right of way over the suit pathway was well over 22 years, and such user was uninterrupted and that therefore he had secured an easementary right within the meaning of Section 15 of the Easements Act. The defendant however contended that the suit pathway was not in existence and the plaintiff did never secure any right known to law to use the same and claim a right over it. On a dismissal of the suit by the District Munsif the plaintiff appealed and the first appellate Court reversed the decision of the learned District Munsif and found that the suit pathway was absolutely necessary for the enjoyment of the property ABCDE and that such a right ran with the land. He also found, as a matter of fact, that the suit pathway always existed and believed the oral evidence let in on the side of the plaintiff that the disputed pathway was in the enjoyment of the plaintiff and his predecessors for well over 20 years. He did not agree with the contentions raised before him that the suit as framed was not for the declaration of an easement right, but appears to be for a declaration of ownership in the suit pathway, and came to the conclusion that a legal inference as to the existence of the right in favour of the plaintiff could be drown from the evidence, oral and documentary, adduced in the case. The learned Subordinate Judge ultimately found that there was a pathway as alleged by the plaintiff over which he had a right of casement which he characterized as easement of necessity within the meaning of Section 13(e) of the Easements Act. He therefore upheld the claim of the plaintiff and decreed the

(3.) LEARNED Counsel for the respondent would state that the property ABCDE was parcelled out of a composite property which was originally in the family of one Kothu Suoba Naicker and the composite property was divided into two, the northern and the southern portions, and one branch of the family retained the northern portion and the other" branch the southern portion. By subsequent alienation by the members of the erstwhile family Which originally owned the composite property the plaintiff became the owner of the property ABCDE (the northern portion) under Exhibit A -4, dated 23rd June, 1932, hereinafter referred to as dominant tenement, and the defendant's father and his brothers secured the southern portion of the composite property under the document Exhibit A -3, dated 27th May, 1890, hereinafter called the servant tenement. In fact, the defendant's father purchased the portion that fell to the share of his brothers and thus became the sole owner of the southern portion. In Exhibit A -3, specific mention is made about the suit property. The recital in this document in so far as it concerns the suit path, is as follows.