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The defendant in O.S.No.209 of 1999 is the appellant. Challenge is to the judgment of the appellate court, which had granted a decree for declaration and mandatory injunction to the effect that the plaintiff is entitled to a 10 feet width pathway on the northern extremity of the defendant's property in Survey No.73/8B to reach his land in Survey No. 73/8A situated on the western side from the cart track situated on east.

11. The learned counsel for the appellant would further submit that even considering that the plaintiff got a right, it is only a right to footpath and not a cart track. The appellate court is therefore not right in granting the plaintiff's right of cart track to the width of 10 feet. Drawing my attention to http://www.judis.nic.in6/12 SA(MD)Nos.234 and 235 of 2015 the recitals in Ex.A2 and A.7 Mr.Manohar, learned counsel would submit that if at all the plaintiff would be entitled to any right he is entitled to the right of footpath but not to cart track. Therefore, according to Mr.Manohar, the appellate court was not right in granting a decree for 10 feet width pathway.

12. Contending contra, Mr.P.Rajagopalan, learned counsel for the first respondent/plaintiff would submit that Exts.A1, A2 and A3 referred the right of way of the plaintiff over the defendant's property. Therefore, the plaintiff had clearly established that he has got undisputable right of way over the defendant's property to reach his land on the west.

13. As regards the width of the pathway, Mr.Rajagopalan, learned counsel for the first respondent, would submit that there is no positive evidence to show the exact width of the pathway and there is no reference to the width of the pathway in the documents. The plaintiff has deposed that he has been using a 10 feet wide pathway and the defendant has not got into the box to rebut the same and the defendant examined his son, who was not aware of the earlier transactions.

http://www.judis.nic.in7/12 SA(MD)Nos.234 and 235 of 2015

14. I have considered the rival submissions.

15. As rightly pointed out by Mr.P.Rajagopalan, learned counsel for the first respondent, the right of the plaintiff in a pathway over the property of the defendant cannot be denied in the light of the recitals in Exts.A1, A2 and A3. While Ex.A.1 specifically recognizes the right of the plaintiff over the defendant's property, Exts.A2 and A3 excluded the pathway from the property sold to the defendant. Therefore, the right of the plaintiff to a pathway cannot be denied. Despite his best efforts, Mr.Manoharan, learned counsel for the appellant is unable to point out any other material, which would justify a different conclusion. As regards the width of the pathway on the east, I find force in the submission of the learned counsel for the appellant. Ex.A1 states that the plaintiff would be entitled to a right of way on the eastern side. Exts.A2 and A3 specifically refer to a walk way and not a cart track. If the plaintiff is entitled to only walkway, then, the width of the walkway must be only that of a footpath not a cart track. Except the evidence of P.W.1, there is no other evidence on record to justify the conclusion that the plaintiff is entitled to a 10 feet wide pathway. The lower appellate court in my considered opinion erred in considering the term http://www.judis.nic.in8/12 SA(MD)Nos.234 and 235 of 2015 'Nadai pathai' as a cart track and granting a decree for a pathway of a width of 10 feet to the plaintiff.