Judgment :- One Madasami Chettiar, the appellant herein, was the defendant. One Rajeswari, the respondent herein, was the plaintiff. 2. The plaintiff filed the suit in O.S. No. 348 of 1978 on the file of the District Munsif, Tuticorin for declaration, permanent injunction and mandatory injunction. 3. The basis of the claim of the plaintiff rests on the following pleas:— Schedules I and II properties originally belonged to the defendant. He sold the same as a vacant site to one Sankaran Chettiar under the original of Exhibit A1 sale deed, dated 26.2.1973. The said Sankaran Chettiar put up a tiled house in the vacant site and thereafter, he sold both the scheduled properties to the plaintiff, under the original of Exhibit A2 sale deed, dated 25.2.1976. The said house was given door No. 73-D. Schedule II Property is a common pathway, the suit properly. The plaintiffs predecessors in title and the plaintiff were enjoying the same without any disturbance or obstruction from any quarter whatever all along. The plaintiff laid municipal drinking water pipe underneath and pathway. The said water pipe does not affect or hinder the enjoyment of the pathway by anyone. The defendant, in due course of time, claiming exclusive right to the pathway, put up a door at the western end and causing obstruction for free egress from and ingress into the pathway. He had also erected a sun-shade over the window of his house and diverted rain water from the house top to fall in the common pathway through several vents from the open terrace. He had also put up steps in the pathway for gaining entry into the house constructed by him. A cement pavement had also been laid. All these constructions put up by the defendant caused obstruction to the free exercise of the right of the pathway for egress from the ingress into the house of the plaintiff. Hence, the suit had been laid for the aforesaid reliefs. 4. The suit had been resisted by the defendant inter alia contending that the second schedule property is not a common pathway; but, on the other hand, it belongs to him exclusively; that the constructions, he has put up, such as sun-shade, doorsteps, pavements etc., did not cause any obstruction to the enjoyment of the right of pathway in any manner whatever and therefore, the suit is liable to be dismissed. 5. 5. Learned District Munsif, on the pleadings raised by the parties, framed necessary and requisite issues and the parties went on trial and adduced evidence on the issues so raised. He recorded a finding, on the materials available on record, that the second schedule property is a common pathway and that the defendant is not exclusively entitled to the same. On the basis of the said finding, he decreed the suit as prayed for with costs, giving two months time for compliance of mandatory injunction. 6. Aggrieved defendant filed appeal in A.S. No. 109 of 1980 on the file of Additional Sub-Court, Tuticorin. Learned Subordinate Judge, on consideration of the materials available on record and after hearing the arguments of respective learned counsel for the parties, recorded a finding that the plaintiff will not be entitled to a declaration of the land used as passage as a common pathway and on the basis of such finding, the appeal has been partly allowed modifying the judgment and decree of the trial court in respect of declaration of the land in the common pathway and confirming the judgment and decree of the trial court in respect of the mandatory and permanent injunctions with a direction that the parties should bear their own costs throughout, giving rise to the present Second Appeal by the defendant and Cross Objections by the plaintiff. 7. Learned counsel for the defendant/appellant would raise the following substantial questions of law for consideration:— (1) Whether the acts complained of amount to disturbance of easement within the meaning of S. 33 of the Indian Easements Act (Act V of 1882)? (2) Whether the decree, without a finding that the plaintiffs right of way is obstructed, is sustainable? 8. Learned Counsel for the respondent/plaintiff, on the other hand, would make a frontal attack on the finding of the lower appellate court that the plaintiff will not be entitled to the declaration of the land used as a passage as a common pathway by stating that such a finding is perverse, in the sense of the same not deriving any solidified support from the materials available on record. 9. I may now try to sift the materials available on record and assess the tenability or otherwise of the rival submissions of either counsel. 10. 9. I may now try to sift the materials available on record and assess the tenability or otherwise of the rival submissions of either counsel. 10. Even at the outset, I may point out that both the Courts below did not at all properly consider the recitals in the documents under Exhibits A1 and A2. A proper perusal of these documents would show that what had been conveyed by the defendant in favour of Sankaran Chettiar in Schedule I property and the right of pathway in the second schedule property and whatever rights Sankaran Chettiar acquired had been again further conveyed in favour of the plaintiff. In pith and substance, the plaintiff derived title to Schedule I property and an easementary right of pathway in the second schedule property, as a dominant owner. The trial Court misread the recitals in the documents and came to the conclusion that the second schedule property is commonly owned by both the plaintiff as well as the defendant, whereas the lower appellate court, though nullified such a finding, did not specifically record any finding as to whether the recitals in those documents conferred any easementary right of pathway in the second schedule property to the dominant owner, the plaintiff. I am at a loss to understand, after nullifying the finding of the trial court on that aspect of the matter, the lower appellate court could ever have granted the reliefs of permanent and mandatory injunctions. From the grant of such reliefs, it is well-nigh possible to infer that the lower appellate court could have had in its mind the existence of the easementary right of pathway in the second schedule property inhering in favour of the plaintiff and that perhaps was the reason for the grant of the reliefs of permanent as well as mandatory injunctions. 11. Be that as it may, there can be no manner of doubt whatever that the recitals in the said document conferred right of easement in favour of the plaintiff, in the second schedule property for free egress from and ingress into his house through the north-south lane. 12. 11. Be that as it may, there can be no manner of doubt whatever that the recitals in the said document conferred right of easement in favour of the plaintiff, in the second schedule property for free egress from and ingress into his house through the north-south lane. 12. Once the right of easement of pathway inhering in favour of the plaintiff is recognised, the further question that would fall for consideration is as to whether the servient owner, the defendant could be said to have caused any obstruction to the easementary right of the plaintiff in the second schedule property by the construction of the sunshade over the windows of his house, putting up footsteps for making entry into his house, and laying of pavement in the second schedule property pathway, on the western extremity abutting the north-south road. From a perusal of the Commissioners reports, Exhibits C1 and C3 and plans Exhibits C2 and C4 it is crystal clear that the sun-shade is at the height of 6 7? on the top of the doorway and the breadth of the sunshade is 2 11?. There is also a masonry work on the sunshade for channelising of the rain water and further the sunshade is far beyond the entrance of the house of the plaintiff, in the sense of the same being situate at the north of the entrance. The footsteps in front of the house of the defendant is of one foot in breadth and 6 in height and 4.1? in length and the same is constructed with stone and cement. The materials available on record also do establish that the cement platform put up by the defendant is on the ground level. Admittedly, the plaintiff claims 5 width of pathway. In such state of affairs, by no stretch of imaginations, it can be stated that the constructions or installations, as detailed above, put up by the defendant, would cause any sort of an obstruction or disturbance, in exercise of the easementary right of pathway over the second schedule property by the plaintiff. 13. The Commissioners reports and plans however do not at all give any measurement of the gate put up by the defendant on the western extremity of the second schedule pathway. 13. The Commissioners reports and plans however do not at all give any measurement of the gate put up by the defendant on the western extremity of the second schedule pathway. But a cursory perusal of the plans makes it abundantly clear that the gate put up therein is comparatively smaller in breadth than the breadth of the pathway. The narrowing of the pathway, by putting up of a gate smaller in dimension to the breadth of the pathway can however be construed to be causing some obstruction or disturbance, in the exercise of the right of easement over the second schedule property by the plaintiff. When this aspect was brought to the notice or learned counsel for the appellant, he would however maintain that the narrowing of the pathway by putting up a gate of a smaller dimension could not be stated to have caused any obstruction or disturbance to the exercise of the right of easement over the second schedule property. To this submission, I am unable to affix my seal of approval, on the face of the express and explicit provisions adumbrated under S. 27 of the Indian Easements Act, which prescribes that the servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled as against the dominant owner, to use the servient heritage in any way, consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement, or to render its exercise less convenient. 14. Illustration (b) appended to the section, which is relevant for the purpose of the case, makes the position fluidly crystal clear and it is in the following terms:— “A grants a right of way through his land to B, as owner of a field. A may feed his cattle on grass growing on the way, provided that Bs right of way is not thereby obstructed; but he must not build a wall at the end of his land so as to prevent B from going beyond it, nor must he narrow the way so as to render the exercise of the right less easy than it was at the date of the grant.” 15. On the face of such a statutory provision, it goes without saying that the putting up of a gate by the defendant on the western end of the pathway, a gate lesser in dimension than the width of the lane itself, must have to be construed as an act tending to restrict the easementary right of the plaintiff or to render her exercise less convenient. Therefore, the gate so put up has to be removed and if at all any gate is to be put up for safety and security purposes, the gate should be of the dimension and width of the lane, without causing any disturbance or inconvenience to the plaintiff for making an egress from or ingress into the house of the plaintiff through the pathway. This could be best achieved by permitting the defendant to put up a gate at the western end of the pathway opening into the north-south lane of the dimension and width of the pathway itself with latching arrangement, so that it can be opened by any one from outside or inside for gaining access into or out of the lane. The latching arrangement should not however be locked by either the defendant or the plaintiff or for that matter by anyone. If this sort of arrangement is resorted to, there cannot be any obstruction or disturbance in the exercise of the easement of the pathway by the plaintiff. 16. I have already noticed that the installations or constructions put up by the defendant such as sunshade, footsteps, cement pavement etc., cannot at all be said to be causing any disturbance or obstruction in the exercise of the right of easement of pathway by the plaintiff and this aspect of the matter be highlighted by making a reference to the illustration (b) of S. 33 of the Indian Easements Act, which reads as follows:— “A as owner of a house, has a right to walk along one side of Bs house. B builds a verandah overhanging the way about ten feet from the ground so as not to occasion any inconvenience to foot passengers using the way. This is not substantial damage to A.” 17. B builds a verandah overhanging the way about ten feet from the ground so as not to occasion any inconvenience to foot passengers using the way. This is not substantial damage to A.” 17. The result of the discussion, as above, will lead to the following conclusions:— (1) There is an easementary right of pathway inhering in favour of the plaintiff over the second schedule property, which must be exercised by her free from any obstruction or hindrance or disturbance from any quarters whatever and consequently she is entitled to the relief of permanent injunction, as had been granted by the trial court and laterally upheld by the lower appellate court. (2) The constructions or installations put up by the defendant such as sun-shade, footsteps, cement pavement, constructions put-up by him for eaves and draining of rain water etc., cannot at all be said to be causing any disturbance or obstruction in the exercise of the right of easement of pathway by the plaintiff and consequently, the relief of mandatory injunction granted therefor by the trial as well as by the lower appellate court is set aside. (3) The gate put up by the defendant on the western extremity of the second schedule property should be removed and the obstructing walls on either side of the gateway so put up should also be removed and instead a gate of the width of the pathway should be provided by the defendant with latching arrangement without any locking facilities so as to enable anyone to gain access into or out of the lane. Time for compliance-two months from the date of receipt of the records by the trial court. 18. In view of what has been stated above, the Second Appeal as well as the Cross Objections are disposed of accordingly, but in the circumstances, I make no order to costs.