Judgment : 1. Plaintiffs are the appellants. The suit is one for declaration that the plaintiffs are entitled to the cart track as an easement of prescription and for permanent injunction. The plaintiffs’ case is that plaintiffs 2 and 3 are the sons of first plaintiff and Vanjammal is the mother of plaintiffs 2 and 3 and wife of the first plaintiff. Defendants 2 and 3 are the sons of the first defendant. The lands measuring 0.30 cents in survey No.70/1 and 1.06 acres in survey No.66 belonged to the plaintiffs and they were shown in green colour in the plaint plan. The portion marked in red and the right of cart track towards south and east shown as A B C in the plaint plan and the other rights belonged to Velappa Gounder and his sons were sold to Vanjiappa Gounder and Palanichamy Gounder, sons of Arumuga Gounder on 18.3.1977, who, in turn have exchanged those properties and rights with the plaintiffs 2 and 3, their sisters and mother under the document dated 14.6.1982. In both these documents their rights with regard to cart track are specifically stated. The portion marked in black in the plaint belongs to the defendants. The original owner of the lands in survey Nos.70/1 and 69/2 shown in red colour, now owned by the plaintiffs, were once owned by Velappa Gounder, whose grandfather is Mariappa Gounder, who is the brother of the first defendants father Karuppanna Gounder. As such the red marked portion and the black marked portion originally belonged to the common ancestors. Survey No.69/1 is owned by one Angappa Gounder and the track A B C is on the western fringe of black marked portion and the southern fringe and the same are in existence for a long time and it was enjoyed by Velappa Gounder, subsequently by his purchaser and now by the plaintiffs. The said cart rack continued towards north on the western end of the plaintiffs’ properties and similarly B C continues towards east in survey No.67. The track A B C in defendants’ properties is an easement of right of cart track enjoyed by the plaintiffs as an easement by prescription. The owner of survey No.69/1 Angappa Gounder had filed a suit in O.S. No.754 of 1974 on the file of District Munsif Court, Palani against the first defendant and others. The track A B C in defendants’ properties is an easement of right of cart track enjoyed by the plaintiffs as an easement by prescription. The owner of survey No.69/1 Angappa Gounder had filed a suit in O.S. No.754 of 1974 on the file of District Munsif Court, Palani against the first defendant and others. The cart track was also in existence and the same was noted down by the Advocate Commissioner appointed in the said case in his report. The said suit was compromised recognising the contract. As such the existence of the track A B C has already been established and the same cannot be disputed. The defendants had an idea to purchase the red marked portion from Velappa Gounder but the plaintiffs had purchased the same and therefore, the defendants were having ill-feeling towards the plaintiffs and were trying to cause obstruction to the plaintiffs’ use of the track A B C which resulted in filing the suit. 2. The first defendant filed a written statement wherein he has contended that the suit properties were not properly shown in the plaint plan and the plaintiffs have filed the plan according to their own case. The portion marked in red colour in the plaint plan came to be owned by the first plaintiffs wife Vanjammal and his daughter Palaniammal, wife of Palanichamy Gounder and her sons who are plaintiffs 2 and 3. They got those lands by a deed of exchange. Vanjappa Gounder and Palanichamy Gounder purchased those properties from Velappa Gounder in 1977. Velappa Gounder and his son Palanichamy Gounder and Kaliappa Gounder have divided their properties on 9.7.1963 and the ‘B’ schedule properties were allotted to Velappa Gounder and items 2, 3 and 4 in ‘B’ schedule were the properties which were the subject matter of the exchange deed. Item No.1 in survey No.67 was sold to one Muthusamy and the rests were enjoyed by himself. Velappa Gounder and his uncle Palanichamy Gounder partitioned the property in 1963 and the properties shown in the said partition and the properties shown by the plaintiffs differ. It is stated that no cart track has been shown in the partition deed and the plaintiffs’ claim is not true. There is no cart track in survey No.69/2 as shown by the plaintiffs. It is stated that no cart track has been shown in the partition deed and the plaintiffs’ claim is not true. There is no cart track in survey No.69/2 as shown by the plaintiffs. On the other hand, the plaintiffs came to reside in survey No.70/1 as shown in the plan filed by the defendants and to reach the same, they have been using the poromboke iteri land and they have been using the said land only and not the portion marked as A B C in the plaint plan. The portion marked as B C shown in the plaint plan was given to the Angappa Gounder, son in law of the first defendants brother in the compromise decree and the plaintiffs have no right over the same. The said cart track is also leading upto the land of Angappa Gounder as shown in the plaint plan. There is a fence between the defendants’ land and the land of the Angappa Gounder and the defendants have been enjoying the entire portion to the east of the said fencing and the plaintiffs never enjoyed the portion shown as A B in the plaint plan and there is no such cart track at all. 3. Based upon the above said pleadings the trial Court framed the following issues among other issues: (1) Whether the suit cart track is mentioned in the partition deed dated 9.7.1963? (2) Whether there is any cart track in the defendants’ land? (3) Whether the plaintiffs are entitled to the right of easement in respect of the cart track? 4. The first plaintiff was examined as P.W.1 and one more witness was also examined and Exs.A-1 to A-9 were marked on their side. The first defendant was examined as D.W.1 and Exs.B-1 and B-2 were marked. 5. The trial Court accepted the case of the plaintiffs that there is a cart track in the lands of the defendants and the plaintiffs are entitled to the right of easement by prescription and decreed the suit. 6. The defendants preferred an appeal in A.S. No.95 of 1989 before the District Court, Dindigul and the lower appellate Court did not accept the case of the plaintiffs and allowed the appeal by setting aside the judgment and decree of the trial Court. Aggrieved by the same, the plaintiffs have preferred the present second appeal. 7. 6. The defendants preferred an appeal in A.S. No.95 of 1989 before the District Court, Dindigul and the lower appellate Court did not accept the case of the plaintiffs and allowed the appeal by setting aside the judgment and decree of the trial Court. Aggrieved by the same, the plaintiffs have preferred the present second appeal. 7. Learned advocate for the appellants/ plaintiffs submitted that the original owner of the portion of land in survey Nos.70/1 and 69/2, now owned by the plaintiffs, was one Velappa Gounder, whose grandfather Mariappa Gounder was the brother of the first defendants father Karuppanna Gounder and therefore, the suit property owned by the plaintiffs and the defendants originally owned by common ancestors and the plaintiffs got the suit properties under a deed of exchange Ex.A-4, in which the property purchased by the plaintiffs under Ex.A-3 was exchanged. The property owned by the first defendant is shown as ‘F’ schedule in Ex.A-8 and the said partition was between the first defendant and his cousins. Ex.A-5 is the report and plan filed by the Advocate Commissioner in the earlier suit in O.S. No.754 of 1974, to which the first defendant was a party in which the cart track claimed by the plaintiffs in the plaint plan Ex.A-1 was shown as B C. The said cart track is measuring 6 feet. The said cart track is also shown in Ex.A-7 and the same is not able to be disputed by the defendants. In fact in Ex.A-8, to which the first defendant was a party, in schedule ‘F’ the cart track is shown as running from south to north measuring 7 1/2 cubit. The said cart track is also shown in Ex.A-7 and the same is not able to be disputed by the defendants. In fact in Ex.A-8, to which the first defendant was a party, in schedule ‘F’ the cart track is shown as running from south to north measuring 7 1/2 cubit. As the relationship of the plaintiffs; ancestors and the first defendant is not in dispute, it is made clear that the suit property and the property owned by the first defendant belonged to the common ancestors and the cart track referred to by the plaintiffs was also shown in cart track referred to by the plaintiffs was also shown in Ex.A-8 the partition deed between the first defendant and his cousins, which would go to show that the first defendant and his cousins enjoyed the suit cart track as common cart track and the plaintiffs became entitled to it by virtue of Ex.A-4 and as such it is evident that the plaintiffs and their predecessors have been making use of the suit cart track as the cart track for having ingress and egress to their land. 8. It is the contention of the defendants that in the partition which took place on 9.7.1963 (Ex.B-1) between the first defendant and his cousins, though the cart track is shown, the boundaries were not given and therefore, it cannot be said that the cart track shown in Ex.B-1 and the cart track shown in Ex.A-8 are one and the same. Though the defendants having contended so, it is their duty to establish that there was no cart track at all in he said land. But the said contention cannot be proved for the reason that the cart track finds place in Ex.A-1. But, however, it is argued on behalf of the defendants that the plaintiffs were having access to the suit lands through iteri poromboke land but the defendants have not established the same by any acceptable evidence. Only in such circumstances the trial Court had accepted the case of the plaintiffs that there was a cart track over the suit lands and that is the only cart track through which the plaintiffs were having access to their lands and the said cart track was in existence even long prior to Ex.A-8 of the year 1963 and therefore, the plaintiffs are entitled to use and enjoy the said cart track. 9. 9. Learned advocate for the appellants has pointed out that the lower appellate Court has not given any reason to set aside the judgment and decree of the trial Court and in the said context the same is liable to be set aside in view of the decision rendered by the Supreme Court in Santhosh Hazari v. Purushottam Tiwari (2001)1 Supreme 642 , wherein the Supreme Court has held as follows: “15….While writing a judgment of reversal the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact.” It is pointed out that the lower appellate Court has not pointed out anywhere in the judgment about the incorrectness of the findings of the trial Court and in the evidence of the same, the reasoning given and findings arrived at by the lower appellate Court are liable to be set aside. In fact the lower appellate Court has not given any reason to disbelieve Ex.A-8 while having accepted Ex.B-1. The plaintiffs claim only the right of prescription over the suit cart track and the declaration to that effect, but the same was not properly appreciated which resulted in reversing the judgment and decree of the trial Court. 10. As Ex.A-8 is not in dispute, the earlier owners of the suit property and the first defendant were cousins and the property originally belonged to common ancestors, and they were having access to their respective lands through the suit cart track, and it finds a place in Ex.A-8 itself. 10. As Ex.A-8 is not in dispute, the earlier owners of the suit property and the first defendant were cousins and the property originally belonged to common ancestors, and they were having access to their respective lands through the suit cart track, and it finds a place in Ex.A-8 itself. Sec.13 of the Indian Easement Act, 1882 deals with easements of necessity and quasi easements and Sub-clause (a) of Sec.13 states, “If an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement.” As such, the claim could be made, if it is made out that it is necessary for enjoying the subject matter of the transfer, and it is in evidence that the suit cart track is necessary to enjoy the plaintiffs land. When such a right is refused, then Sec.14 of the Easements Act comes to the aid, which states, “14. Direction by way of necessity: When a right to a way of necessity is created under Sec.13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.” The right of selection is given to the owner of the tenement on which the right is to be exercised and on his refusing or neglecting to do so to the owner of the tenement for the benefit of which it is created. As the defendants refuse, the plaintiffs are entitled to have access to their lands through the cart track which finds place in Ex.A-8 itself. Just because the boundaries were not given, it would not take away the rights of the plaintiffs in using the cart track which has already been in existence and also finds a place in Ex.A-.8. As the defendants refuse, the plaintiffs are entitled to have access to their lands through the cart track which finds place in Ex.A-8 itself. Just because the boundaries were not given, it would not take away the rights of the plaintiffs in using the cart track which has already been in existence and also finds a place in Ex.A-.8. As a matter of fact when the dispute arose between the first defendant and other owners in respect of this cart track, the existence of the cart track was established in Ex.A-5 and therefore, the plaintiffs claim that there is a cart track has already been accepted by the first defendant in the earlier suit. As the cart track is shown in Ex.A-8 itself, it would establish that the plaintiffs ancestors have been making use of the cart track for more than prescribed period as required under Sec.15 of the Easements Act, the plaintiffs are entitled to the right of use and enjoyment of the cart track, which was not properly appreciated by the lower appellate Court and therefore, the said findings are liable to be set aside and accordingly they are set aside. 11. In the result, the second appeal is allowed. No costs.