G. Rajasuria, J.
1. This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 27.10.2006 passed in A.S. No. 37 of 2006 by the Sub-Court, Nagapattinam, confirming the judgement and decree dated 12.4.2006 passed by the District Munsif, Nagapattinam, in O.S. No. 12 of 2003, which was filed for mandatory injunction.
2. The appellant herein as plaintiff filed the suit O.S. No. 12 of 2003 seeking mandatory injunction to remove the construction put up by the defendants in the suit pathway and also to restrain the defendants from interfering with the use of the pathway by the plaintiff on the main ground that ever since he acquired the property, to the East of the suit pathway, he has been using it for ingress and egress to his property and that his predecessor in title, namely, his vendor also was using the same.
3. Whereas the defendants entered appearance and resisted the suit by filing written statement remonstrating and refuting the allegations in the plaint and also pointing out the rebarbative and antipathetical attitude, which the plaintiff was emitting towards the defendants in their enjoying their own exclusive suit pathway, which forms part of their own land, as per their title deeds.
4. The trial Court framed the relevant issues. During enquiry, the plaintiff examined himself as P.W.1 along with one Rengaiyan as P.W.2 and Kaliaperumal as P.W.3 and Exs.A1 to A9 were marked. On the defendants' side the first defendant examined himself as D.W.1 and Ex.B1 to B.4 were marked. Ex.C1 and Ex.C2 were marked as Court documents.
5. Ultimately, the trial Court dismissed the suit, as against which, the plaintiff preferred the appeal A.S. No. 37 of 2006, which was also dismissed by the first appellate Court, confirming the the judgement and decree of the trial Court.
6. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, the plaintiff preferred this second appeal on various grounds and also suggesting the following substantial questions of law:
a) Whether the non-consideration of Ex.C2(Plan) in which Advocate Commissioner mentioned that in the suit land 2 feet come under appellants Survey No. 96/8 and 3/4 feet alone come under the respondents survey No. 96/7 so dismissing the suit claim by both the Courts below is valid in law?
b) When the Advocate Commissioner appointed by the Court clearly mentioned that in the suit lane out of 3 feet, 2 feet come under appellants property. So non-decreeing the suit is valid in law?
c) When the claim of easementary right in the suit lane was negatived by both the courts below without considering sale deeds Ex.A1 and A2 and the Evidence of P.W.1 to 3 is legally correct?
7. Heard the learned Counsel for both sides.
8. The learned Counsel for the plaintiff would reiterate the grounds as found set out in the memorandum of second appeal. Whereas, the learned Counsel for the defendants would appropriately and correctly put forth his argument to the effect that the trial Court in its judgement pointed out that P.W.2-the vendor of the plaintiff admitted in unequivocal and unambiguous terms that he himself was not using the suit pathway, but on the other hand he was having ingress and egress to the property, which was sold by him to the plaintiff, directly from the Road situated to the North of the said property. As such, the very admission of P.W.2-the vendor of the plaintiff proved fatal to the case of the plaintiff.
9. It is also in evidence that from the road situated to the North of the plaintiff's property, the plaintiff is having directly ingress and egress to his property and his vendor also was using the same. However, certain shops have been built, abetting the said Northern side road and despite such construction of shops, the plaintiff has been some portion abetting the Northern side road for having ingress and egress to the back portion of his residential area. The plaintiff cannot artificially create obstacle for himself and claim as of necessity to use the adjacent pathway, over which apparently and axiomatically he is having no right.
10. In order to acquire easement by prescription, as per Section 15 of the Indian Easements Act, he should have proved before the Court that he had been using it for 20 years. Section 15 is extracted hereunder for ready reference.
15. Acquisition by prescription - Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement, shall be absolute.
Each of the said period of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
11. The very plaint averments would exemplify and convey as though the plaintiff has been using the suit pathway only for 12 years and there is no indication that for 20 long years his vendor and following him, the plaintiff has been using it. Both the Courts below adverting to the factual circumstance, and both oral and documentary evidence, arrived at the finding of fact that over the suit pathway, the plaintiff or his vendor had no right. Hence, I could see no question of law much less substantial question to interfere with the findings of both the Courts below.
12. In the memorandum of appeal, the suggested substantial questions of law (a) and (b) are relating to Ex.C2-the Advocate Commissioner's plain. I am at a loss to understand as to how the plaintiff could place reliance on the Commissioner's sketch when the evidence discussed supra is speaking against the claim of the plaintiff. The Commissioner's report and Sketch could be used only for the limited purpose of highlighting the physical features and nothing more and the very attempt on the part of the plaintiff to seek support from Ex.C2 would show that he has resorted to waging a lost ditch battle.
13. Put simply, the suggested substantial question of law (c) is concerned, it does not arise at all in view of the fact that absolutely there is no adequate pleadings to prove easement by prescription as per Section 15 of the Act and the plaintiff's stand got torpetoed by the admission of P.W.2- the plaintiff's vendor. Accordingly, I could see no merit in the second appeal and the same is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.