Judgment :- The second appeal has been filed by Thiruvengada Goundar(since died) being the third defendant in O.S.No.390 of 1989 on the file of the District Munsif, Maduranthagam against the judgment and decree of the Principal Sub Court, Chingleput in A.S.No.103 of 1990 in and by which the said Sub Court has dismissed the appeal and confirmed the judgment and decree of the Trial Court. 2. The said suit was filed by one Elumalai Goundar against his own three brothers for the reliefs of declaration and permanent injunction with the following allegations. The suit property viz., the portion marked in the plaint plan as 'ABCDEF' in S.No. 39 and 40 at Pasuvankaranai village, Madurantagam Taluk along with other properties originally owned by the father of the plaintiff and defendants viz., Abimanyu Goundar. The said Abimanyu Gounder, through execution of a Will in favour of his four sons described as A, B, C, D schedules. A, B and C schedules were respectively given to defendants 1 to 3 and D schedule was given to the plaintiff. After the death of Abimanyu Gounder, the plaintiff and defendants are enjoying the respective properties allotted to them as per the said schedules. C schedule properties allotted to the third defendant Thiruvengada Goundar are lying adjacent to the Endathur-Elapakkam road. There is also a cart-track leading from the said road to the lands shown as ABCDEF in the plaint plan and the cart-track was being enjoyed by Abimanyu Gounder also during his lifetime. The said cart-track was being used for the purpose of getting the agricultural produce from the lands and for getting Tractor and other vehicles for the purpose of transporting manure, etc. The said cart-track is the only access for reaching S.Nos.23/1, 23/3, 23/4 and 24 and there is no other access. Further, the existence of the said cart-track and access of the same has been admitted by the defendants in the written statement filed by them in O.S.No.263 of 1987 filed by one Kali Gounder. Now, due to enmity between the plaintiff and defendants, they are trying to interfere and obstruct the use of the cart-track by the plaintiff without any right or basis. Therefore, the plaintiff happened to file the suit for declaration in respect of the cart-track marked as 'ABCDEF' and consequential permanent injunction. 3. Now, due to enmity between the plaintiff and defendants, they are trying to interfere and obstruct the use of the cart-track by the plaintiff without any right or basis. Therefore, the plaintiff happened to file the suit for declaration in respect of the cart-track marked as 'ABCDEF' and consequential permanent injunction. 3. The said suit has been resisted by the defendants by adopting the written statement filed by the third defendant with the following allegations. It is not correct to state that 'ABCDEF' marked cart-track is being used for more than 22 years and it is also not correct to state that the said cart-track is being enjoyed by the plaintiff by way of easement of necessity. There is no such cart-track as claimed in the plaint and that if really there was a cart-track, the said Abimanyu Gounder himself would have mentioned about the existence of such cart-track in the Will executed by him in favour of his sons. The cart-track shown by the commissioner in his plan with the width of 8 feet is also not correct. It is not correct to state that the defendants in O.S.No.263 of 1987 admitted about the existence of the cart-track and the said Kali Gounder being the plaintiff in that suit demanded only pathway upon the ridge and nothing more. The lands bearing S.Nos.30, 40/1A, 40/1B and 40/8 are belonging to the defendants. Therefore, nobody was enjoying the cart-track as such claimed in the plaint at any time and thereby the suit is liable to be dismissed. 4. On trial and after examining P.Ws.1 to 3 including the plaintiff as PW1 and the third defendant as DW1 and the advocate commissioner as Court witness and marking of four documents as Exs.A1 to A4 and seven documents as Exs.B1 to B7 besides the advocate commissioner's report and plan, the District Munsif, Maduranthagam came to the conclusion that the plaintiff is entitled to have the reliefs of declaration and permanent injunction as prayed for and consequently decreed the suit. 5. 5. On appeal by the third defendant Thiruvengada Goundar in A.S.No.103 of 1990 on the file of the Principal Sub Court, Chingleput, the Sub Judge also after considering the evidence available for either side came to the conclusion that the plaintiff is entitled to have the cart-track marked as ABCDEF by way of easement of necessity and consequently, dismissed the appeal and confirmed the judgment and decree of the Trial Court. 6. I have gone through the entire oral and documentary evidence available for either side in the light of judgments of both the courts below and the arguments of the counsel appearing for either side in detail. I am able to see that the following important and salient aspects for appreciation and taking decision. The fact remains that all the lands were originally owned by Abimanyu Gounder and he executed a Will in favour of his four sons in respect of the properties covered by separate schedules for each as A, B, C and D. Further, fact remains that the lands obtained by them under the Will were enjoyed by each brother separately. Further fact remains that all the lands belonging to the plaintiff as well as defendants lying adjacent and west of Elapakkam road. It is also an undisputed fact that the said Abimanyu Gounder has not referred any cart-track in the Will executed by him. At the same time, it cannot be disputed in the ordinary course of events and prudence that when many persons take lands from a common owner like Abimanyu Gounder, there should be some arrangements for all the sons that they should have right to access the lands through other lands by way of easement. At the same time, it cannot be disputed in the ordinary course of events and prudence that when many persons take lands from a common owner like Abimanyu Gounder, there should be some arrangements for all the sons that they should have right to access the lands through other lands by way of easement. In this connection, the plaintiff claims that though there is no specific mention of cart-track in the Will executed by Abimanyu Gounder, the disputed cart-track figuring as subject matter of the suit is in existence even from the lifetime of Abimanyu Gounder and he was also enjoying the said cart-track by using Tractor and Bullock Carts, etc., for the purpose of bringing manure to the lands and usufructs of the lands to his house and other places and that likewise, even after the death of Abimanyu Gounder, the plaintiff is continuing to use the said cart-track as usual and that further, the defendants out of recent enmity, are trying to obstruct and interfere with such use of the cart-track by the plaintiff. 7. There is no dispute on the fact that Abimanyu Gounder was using Tractor and afterwards the plaintiff also is using Tractor and other vehicles for agricultural purpose. The commissioner's report and plan marked as Exs.C1 and C2 also cumulatively go to indicate that Elapakkam road runs along with S.No.39 and from the said road, a pathway runs through the suit survey number with 8 feet width and particularly it is 15 feet width when the pathway turns left as shown in the plan and then again it runs with 8 feet width upto S.No.40/8 wherein it ends with 4 feet width and they further indicate that a Bullock Cart and a Tractor and Trailor were parked on the said path and haysticks were stored near to the Bullock Cart and they further indicate that the plot covered by S.No.39 is 1 feet higher than the level of other plots covered by different survey numbers and that abetting the said path, there are old trees all along. Therefore, the commissioner's report and plan support the claim of the plaintiff that there is a path with 8 feet width and in one or two places with 15 feet width and at the southern end at 4 feet width and the Tractor and cart were also found to be at the said path showing the use of Cart Track for bringing Bullock Cart for agricultural purposes. If really there is no such pathway in a way for the use of Bullock Carts and Tractor, only such a path should be in existence and such path cannot be made all of a sudden for the purpose of this case. So, the factual state of facts clearly indicate that there is a pathway capable of giving access and use to Bullock Cart and Tractor. 8. Moreover, it is not the stand of the defendants that the plaintiff should not use the said path for getting access of Bullock Cart, Tractor, etc., and if at all the plaintiff can use the same as ridges. They have gone to the extent of denying the existence of path in a way accessing Bullock Cart, Tractor, etc. But, as already observed supra, the factual statement goes to falsify the stand of the defendant as if there is no path with the width of 8 feet or 15 feet and it is only a ridge. Moreover, even according to the stand taken by the plaintiff and the defendants herein as defendants in O.S.No.263 of 1987 filed by Kali Gounder that the said Kali Gounder cannot claim 'CDEB' as shown in the defendants' plan attached to their statement in that suit and it has been admitted by the defendants in that suit also to the effect that all the brothers are enjoying this right of access in common and no other party has got any right to have access in that 'CDEB'. The said 'CDEB' line is now described as 'ABCDEF' in the present suit as its plaint plan. This aspect also has been considered by the Sub Court, Chingleput in his judgment. 9. Therefore, in all reasonableness, I am of the view that both the courts below have concurrently found and come to the conclusion that the plaintiff is entitled to have decree for declaration and injunction in respect of 'ABCDEF' portion by way of easement of necessity and the defendants cannot interfere with the same. 9. Therefore, in all reasonableness, I am of the view that both the courts below have concurrently found and come to the conclusion that the plaintiff is entitled to have decree for declaration and injunction in respect of 'ABCDEF' portion by way of easement of necessity and the defendants cannot interfere with the same. Following that, I am also of the view that the second appeal has no merits or grounds in such a way to invite this court to interfere with the concurrent findings and conclusions of both the courts below. 10. In the result, the second appeal fails and the same is dismissed with costs.