RANGASAWMI PILLAI Vs. ONDIA PILLAI

JUDGEMENT

(1.) The plots about which there is a dispute in the second appeal are ABCD and EFGD. The Judge finds that ABCD must be decreed to be common to the plaintiffs and the defendants. We cannot accept this view. The plaintiffs claimed the plot as their own. The defendants, in paragraph 3 of the original written statement and in paragraphs 5 and 6 of the second written statement, merely claimed an easement of way over it. We must, therefore, overrule the Judge s finding as to common ownership. As regards the easement set up it is not clear to what place this right of way was attached. The Judge will take a statement from the defendants on this point and try the question raised under the fifth issue. As regards the plot EFGD, the Judge has found it to be the property of the plaintiffs and declared an easement of way over it in the defendant s favour. This conclusion he has based on the Munsif s finding of user under a license. This view is not legally sound. The Judge must find under the fifth issue whether the defendants have any easement of way, by user as of right, over EFGD. A statement must also be taken from the defendants as regards the property to which the right of way over EFGD is attached. The finding on the fifth issue, which we understand, relates to both plots ABCD and EFGD will be returned on the evidence on record within one month after the re-opening of the District Court. Seven days will be allowed for filing objections.

(2.) In compliance with the order contained in the above judgment, the District Judge submitted the following. FINDING

(3.) I am called on for a finding in respect of both the disputed sites EFGD and ABOD in the fifth issue, which is, whether the defendants have a right of way across the gateway and over the vacant site behind it as pleaded in their written statements. The defendants have now made their case clear by putting in an additional written statement as required by the High Court claiming a right of way over the above two plots as attached to their house and land on the south and west.