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7.As indicated earlier, the first defendant also filed an additional written statement explaining in detail, how the other plots are located and the position that the defendants have access only through the common passage that is available on the western side of the plots. Since the vendors of the plaintiff and defendants directed every purchasers to leave 10 feet wide space on the western side portion of their respective plots, it is contended that all the plot owners have left 10 feet common pathway on the western side of their respective plots and enjoyed the common passage for all purposes. Since there was no alternative pathway, the first defendant also raised a plea of easement by necessity. It is also the case of the first defendant that there has been an inadvertent omission in the sale deed obtained by the plaintiff to leave 10 feet width space on the western side of the plot for the common pathway. It is also the case of the first defendant that taking undue advantage of the inadvertent error, the plaintiff has come forward with the present suit claiming right over the common pathway, which was to be left by every plot owners for the purpose of having access to the northern side road from every plot. It is further stated in http://www.judis.nic.in the written statement that there is a septic tank in front of the first defendant's house and the water overflowing from the septic tank passes through a pipe line laid under a depth of 3 feet below the ground level to reach the municipal drainage system, through the common pathway space in front of the house of others. In the additional written statement, it is stated that the existing pipeline runs through the 10" pathway in front the every plot as underground pipeline.

9.Before the trial Court, the plaintiff examined herself as PW-1 and examined two other witnesses, PW-2 and PW-3. On behalf of the plaintiff, documents Ex-A1 to Ex-A9 were marked. On the side of the defendants, first defendant examined himself as DW-1 and examined one Baskaran as DW-2. The defendants marked Ex-B1 to Ex-B30. The trial Court, after framing necessary issues, found that the plaintiff has purchased the suit property as per the sale deed under Ex-A1, dated 07.07.1985. However, after referring to document Ex-A1 and the submission of the Counsel for the plaintiff, the trial Court found that there is no recital in the sale deed, Ex-A1, to the effect that the plaintiff has to leave 10 feet pathway and accepted the case of the defendants that 10 feet space has been left by every plot owners for using the same as common pathway for the benefit of purchasers of the plot on the northern side and the southern http://www.judis.nic.in side of the suit property. In this regard, the trial Court considered the documents Ex-B3 to Ex-B6 and Ex-B16 to Ex-B18 executed by the same vendor through their power of attorney agent. Since the plaintiff during the examination admitted the existence of all eight houses having the common passage on the western side of the plot, the trial Court found that the original owner Lakshmi Ammal and her son S.Devass, have sold the plots to all the eight persons requesting them to leave a space of 10 feet on the western side of their plots. It is also admitted that on the northern side of the suit property, the vendors have already left 10 feet on the further west of the western side property sold to the other persons on the northern side.

14.The learned Senior Counsel appearing for the appellant submitted that the trial Court has erroneously held that the suit property is the property in which the plaintiff and the defendants have right. The finding of the trial Court that the first defendant is entitled to use the passage by easement of necessity, is therefore contradictory. It is submitted that a person, who claims ownership over the property is not entitled to claim easement. It is also submitted that the first defendant, who has pleaded easement of necessity cannot claim the entire property of 10 feet x 17½ feet and a person whose right of easement, is recognised due to necessity cannot claim right over the entire 10 feet, as an extent of 2 to 3 feet is sufficient for anyone, to have access to the http://www.judis.nic.in main road on the north. The learned Senior Counsel appearing for the appellant relied upon the recital of document Ex-A1, namely the sale deed, by which the plaintiff purchased the property. From the sale deed, the learned Senior Counsel appearing for the appellant pointed out that the western portion of the property purchased by the plaintiff under Ex-A1 is referred to as common pathway. Since the suit property has been specifically purchased by the plaintiff under Ex-A1 and there is no recital to leave any space on the western side of the plot to be used as a common passage, it is contended by the learned Senior Counsel appearing for the appellant that the pathway that was referred to in the sale deed, Ex-A1 is only the common passage that is available on the further west of the suit property. It was suggested by the learned Senior Counsel appearing for the appellant that the case of the defendants is contrary to the document of title deed, Ex-A1 and the plaintiff is not obliged to leave 10 feet passage for the common enjoyment of all the plot owners, when the original owner has not reserved any such right.

17.The learned Senior Counsel appearing for the appellant has also relied upon the documents, by which the first defendant and other defendants purchased the properties. One of the documents is the sale deed under Ex-B4, executed by the original owner in favour of the defendants 2 and 3, wherein, western side of the property purchased by them also is shown as 10 feet road. It was pointed out by the learned Senior Counsel appearing for the appellant that even in this document, there was no reference to the suit common passage. However, this property is the plot on the extreme south sand therefore, the failure to describe the 10 feet pathway in this document may not have much significance as no other person need to use. However, from the description of property purchased by the first defendant and all the northern plot owners, would certainly indicate that the original owner wanted every purchasers to leave the 10 feet passage as a common pathway to all the purchasers who have purchased the plots from them. The learned Senior Counsel for the appellant, of course, is right in his submission that the sale deed, Ex-A1, cannot be ignored. http://www.judis.nic.in When the plaintiff has purchased the plot without reference to suit common passage as per the title under Ex-A1 is not disputed, the plaintiff cannot be deprived of his title to the extent of land conveyed under Ex-A1. However, the question in this case is not about the title of plaintiff. The defendants have claimed a right of easement on the ground that a 10 feet width pathway was intended to be left by the original owners for the benefit of the purchasers of individual plots, so that they can have access through a 10 feet pathway to reach the main road on the northern side. Irrespective of the fact whether the plaintiff has title to the property or not, the Court can recognise the right of easement, by holding that the western 10 feet of pathway on the western portion of the suit property is a common pathway being enjoyed by the purchasers of plot on the southern side.