K JAYALAKSHMI AMMAL Vs. S M BALASUNDARAM

JUDGEMENT

(1.) SECOND Appeal is by defendant in O. S. No. 8858 of 1972, on the file of City Civil Court , Madras . The appeal was once heard, and, as per judgment dated 27. 2. 1996, I set aside the concurrent judgments of both the courts below, and the second appeal was allowed. On that day, there was no appearance for the second respondent, and I heard the appellant alone. Thereafter, C. M. P. No. 9628 of 1996 was filed to re-open the case, stating that on the date when the second appeal was heard, learned counsel for the second respondent herein could not appear, and in fact, even notice of second appeal was not served on them (respondents ).

(2.) SINCE I was convinced with the reasons stated in the affidavit filed in support of that petition, I allowed the same and restored the second appeal to file. Thereafter, I heard the second appeal on merits. Learned counsel on both sides were heard.

(3.) AGGRIEVED by the judgment, defendant took the matter in appeal. The lower appellate court considered this question in paragraph 13. The lower appellate court also found that the evidence adduced by plaintiffs regarding the user of the pathway for scavengers is reasonable, and the same could be believed. The lower appellate court also found that the tenants on the rear side were also using the said passage, and there is no reason to disbelieve that part of the evidence as well. Finally, the lower appellate court said that when Door No. 19 came in the hands of the third person like plaintiff, they would also be entitled to exercise the right of easement over the passage ZYXT as an easement of necessity. The lower appellate court further found taking into consideration the evidence that they have prescribed the right of easement for over the statutory period. The trial court judgment regarding the said point was confirmed. It is against the concurrent judgments , defendant has preferred this second appeal.