Alleging the existence of plaint C schedule pathway which is stated to be running along the western boundary of plaint B schedule which belonged to the defendant and claiming a prescriptive right of easement over the said pathway, the plaintiff laid the suit.
2. The defendants resisted the suit denying the existence of the pathway as well as its use by the plaintiff.
3. Issues were raised by the trial court and parties went to trial. The evidence consists of the testimony of PWs 1 to 4 examined from the side of the plaintiff and the documents marked as Exts. A1 to A5. The defendants had DW1 examined and had marked Exts. B1 to B6. Exts. C1 to C2(a) are the Commissioners reports and plan.
4. On an appreciation of the evidence in the case, both the courts below came to the conclusion that since the Commissioner has reported that she could not locate the C schedule pathway, there were no such pathway and further there were no evidence of use of the pathway as claimed by the plaintiff. Both the courts below were also of the view that being paddy field, ridges might have been used for ingress and egress. But that by itself is insufficient to confer a right of easement. Accordingly, the suit was dismissed which was confirmed in appeal.
5. The learned counsel appearing for the appellant contended that there is misappreciation of evidence in the case and there has not been a proper evaluation of the oral evidence adduced in the case. Referring to the evidence of prior owner of plaint B schedule, it is contended that it was specifically spoken to by the said witness that there is a way running along the western boundary of plaint B schedule property and that it was being used by him and now by the plaintiff. This assertion by the by the prior owner of plaint B schedule property could not have been ignored by the courts below and it has not been given due significance. It is also contended by the learned counsel for the appellant that apart from the way now alleged i.e., the C schedule pathway, there is no other means of access to the plaintiff to his property.
6. Both the courts below have extensively considered the evidence on record and have come to the conclusion that the C schedule pathway does not exist. It is true that in the first Commissioners report i.e. Exts.C1 and C1(a), there is a mention of the pathway made by the Commissioner. But on detailed examination and on perusing of the documents, it has been categorically stated by the Commissioner that she could not locate a pathway shown as C schedule. It does not appear that there was any request from the side of the plaintiff to the Commissioner to ascertain if there are any other means of access to the Plaint A schedule property. Any how, there is no discrepancy in the finding of the court below in this regard.
7. One must remember that the plaintiff is claiming a right of easement. Being a precarious right the entire burden is on the plaintiff. It has come out in evidence that plaint A and B schedule properties are paddy fields and there are ridges running between the properties. The ridges in question appears to be having a width of 4 meters. It might have been used for certain purposes for carrying out cultivation in the property. But that by itself is insufficient to confer a specific right on the persons concerned. It is well settled that by travelling or using ridges of a paddy fields one does not acquire the right of easement by prescription unless of course it later on converted into a road. There is nothing to indicate that the Commissioners report is erroneous. Both the courts below have accepted the commissioners report and have come to the conclusion that there is no pathway shown as C schedule. The appellant was unable to show that either the findings are wrong or that observations made by the courts below are incorrect.
In the light of the above facts and circumstances of the case, no question of law arises for consideration in this second appeal. This appeal is without merits and is accordingly dismissed in limine.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE