NANJAMMAL Vs. MARAPPA GOUNDER

JUDGEMENT

(1.) ADDITIONAL plaintiffs 2 to 7, who are legal heirs of original plaintiff in O. S. No. 105 of 1975, on the file of the District Munsif's Court, gobichettipalayam, (renumbered as O. S. 87 of 1982, on the file of Sub Court , Gobichettipalayam), are the appellants.

(2.) THE plaintiff filed the suit to declare the title over the suit property and also for other consequential reliefs which are described thus: ' (a) Declaring the plaintiff's title of the suit property (b) Declaring plaintiff' s easement right in the suit cart track for using and taking carts, cattle and men through the cart track to the suit property (c) Granting a permanent injunction restraining the defendant, their relatives and on from interfering the suit property peaceful enjoyment of the plaintiff in the suit property and from obstructing or preventing the free user of the cart track by the plaintiff and (d) Awarding the cost of the suit. . .' THE suit property is described thus: ' An extent of 2 acres and 933/4 cents situated in the northern portion in S. F. No. 369 and 370 in Kondappanaickenpalayam village, Gobichettipalayam Taluk along with the cart-track starting from the panchayat Board road which proceeds from Panchayat Board Road through s. F. No. 364, and other fields and reaches the suit property at point A with the breadth of 10 feet on shown in the red marked portion in the plaint plan attached herewith in S. F. 364, S. F. 363 and S. F. 369.'

(3.) THE trial Court found that even though the claim of the plaintiff that the suit cart track was in existence for more than 40 years, was not proved, it was found that it was in existence atleast for 30 years. THE trial court found that there was a cart track, though the width of the same may not be 10 feet. Relying on the evidence of P. W. 3, the trial court found that it must have been in existence for more than 30 years. Aggrieved by the judgment, defendants 2 and 7 preferred A. S. No. 176 of 1983, on the file of District Judge, periyar District at Erode. THE lower appellate Court reconsidered the entire evidence and came to the conclusion Plaintiff has miserably failed to prove his face, and he is not entitled to any relief. THE lower appellate Court found that there was no cart track as pleaded by the plaintiff. It could not have come into existence as alleged by the plaintiff and even as per easement of necessity, the plaintiff is not entitled to any relief. THE lower Court further found that the plaintiff has other rights of way which disentitle him to claim an easement of necessity under Sec. 13 of the Easements Act. It is the said judgment that is challenged in this second appeal filed by the additional plaintiffs.