Judgment The unsuccessful first defendant in O.S.No.612 of 1987 on the file of the District Munsif Court, Jayankondam, who also lost before the first appellate court in A.S.No.6 of 1991 on the file of the Subordinate Court, Ariyalur, is the appellant in the above second appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. The case of the plaintiff in-brief is as follows:- .a. The house situated on the east of the suit property originally belonged to the plaintiffs father Palani Mudaliar and his brothers Govindasamy Mudaliar and Ramalinga Mudaliar. At present, the western portion of the said house belongs to the plaintiff and the eastern portion belongs to Govindasamy Mudaliar and his two sons, namely, Chokkalingam and Rajendiran. The suit property and the said house property have been shown in the rough sketch filed along with the plaint. The suit property is shown as ABCD in red colour. .b. The suit property is a common lane belonging to the plaintiff and the defendants. The plaintiff and his predecessors in title were using the common lane to reach the garden situated on the back side of the plaintiffs house. In the garden, the plaintiff is tying the cattle and is also having his manure pit. The plaintiff is using the common lane for taking the manure and the cattle for well over 50 years. Except the common lane, there is no other way to reach the garden from the plaintiffs house. On the western side, the eaves of the plaintiffs house are protruding into the suit lane likewise, the eaves of the eastern wall of the defendants house are protruding into the suit lane and from this physical feature it is clear that the suit lane is a common lane for the plaintiff and the defendants. .c. Under the registered sale deed Ex.A2, dated 29. 1948 Govindasamy Mudaliar sold the part of the northern portion of the house of plaintiff and part of the northern portion of the garden to one Muthukaruppa Mudaliar. Later under the sale deed Ex.A3, dated 25. 1965 the plaintiff purchased a part of northwest portion and eastern portion of the house from Rengasamy s/o. Muthukaruppa Mudaliar. 1948 Govindasamy Mudaliar sold the part of the northern portion of the house of plaintiff and part of the northern portion of the garden to one Muthukaruppa Mudaliar. Later under the sale deed Ex.A3, dated 25. 1965 the plaintiff purchased a part of northwest portion and eastern portion of the house from Rengasamy s/o. Muthukaruppa Mudaliar. On the same date, under Ex.A4, the plaintiff and Govindasamy Mudaliar and his sons exchanged their respective properties, namely, the western portion was given to the plaintiff and the eastern portion was given to Govindasamy Mudaliar and his family. .d. In the sale deed Ex.A2, dated 29. 1948 and the sale deed Ex.A3, dated 25. 1965, in the description of the properties, it has been specifically mentioned that .e. In Ex.A2, in the schedule to the property, it is mentioned as follows:- In the sale deed Ex.A3 and exchange deed Ex.A4, in the schedule to the property it is mentioned as follows:- g. The plaintiff is using the said pathway for well over 30 years and as such he is entitled to easementary right by prescription. When the plaintiff started demolishing the southern portion of his building and put up pucca construction, the defendants objected to put up the sun shades over the common lane and prevented the plaintiff from using the common lane. That gives rise to cause of action for filing the suit for permanent injunction. 3. The first defendant filed a written statement, which was adopted by the defendants 2 and 3. The defendants contested the suit, inter alia, contending as follows:- .a. The rough sketch filed along with the plaint is not correct. The lane mentioned as ABCD, which is shown in red colour in the rough sketch, is not common to the plaintiff and the defendants. The lane belongs exclusively to the defendants. Neither the plaintiff nor his predecessors have used the lane to reach their garden on the north of their house. The sale deeds under Ex.A2 and A3 and exchange deed under Ex.A4 are admitted but the recitals are not admitted. The plaintiff and Govindasamy Mudaliar were using the lane existing on the eastern side of their house and they were not using the suit lane to reach their garden lying on the north of their house. The sale deeds under Ex.A2 and A3 and exchange deed under Ex.A4 are admitted but the recitals are not admitted. The plaintiff and Govindasamy Mudaliar were using the lane existing on the eastern side of their house and they were not using the suit lane to reach their garden lying on the north of their house. .b. Simply because, the eaves of the plaintiffs house are protruding into the lane the plaintiff cannot claim the lane as common lane. From the recitals contained in Ex.A3, it cannot be construed that the lane is a common lane, whereas it is the common lane of Subbaraya Mudaliar and his family. The measurements mentioned in the sale deeds also will show that the lane is not the common lane. The claim of the plaintiff that the plaintiff and his predecessors have been using the lane to reach their garden for well over 30 years is not correct. The plaintiff has not prescribed his easementary right. The plaintiff is not entitled for easementary right of necessity and he has got alternative way to reach the garden. Since the plaintiff is not admitting the title of the defendants over the suit property, the plaintiff is not entitled to claim easement by prescription. The claim of the plaintiff that the lane is a common lane and the claim for easementary right by prescription cannot go together. On the aforesaid pleadings, the defendants sought for the dismissal of the suit. .4. After framing appropriate issues, the trial court took up the case for trial and during the course of trial on the side of the plaintiff, the plaintiff was examined as P.W.1 and Exs.A1 to A6 were examined and on the side of the defendants, the first defendant was examined as D.W.1 and Exs.B1 to B3 were marked and the Commissioners reports .and sketches were marked as Exs.C1 to C4. 5. The trial Court on a consideration of the oral and documentary evidence adduced in the case granted permanent injunction holding that the suit lane is a common lane belonged to the plaintiff and the defendants but rejected the claim of easementary right by prescription as he is not entitled to the right of easement by prescription. 6. Being aggrieved by that the first defendant preferred an appeal before the Sub Court, Ariyalur in A.S.No.6 of 1991. 7. 6. Being aggrieved by that the first defendant preferred an appeal before the Sub Court, Ariyalur in A.S.No.6 of 1991. 7. The lower appellate court on an independent consideration of oral and documentary evidence adduced in the case and the findings of the trial court concurred with the same and dismissed the appeal. 8. Being aggrieved by that the defendants have filed the above second appeal before this Court. .9. While admitting the above second appeal, the following substantial question of law has been framed:- ."Whether Ex.A5, A6 and B3 have any relevance to decide about the question as to whether the suit lane is a common lane and the non consideration of the above Exhibits by the Appellate Court is detrimental to the decision of the Appellate Court? .10. At the time of hearing, after putting the respondent on notice, the appellant has raised the following additional substantial question of law. ."Whether the plaintiff pleading easementary rights of prescription and necessity thereby admitting the ownership of the defendants cannot plead that the suit property is a common lane?" 11. Heard both. .12. The learned counsel for the appellant submitted that the Courts below have erred in .holding that A, B, C, D lane is a common lane. The learned counsel submitted that A, B, C, D portion ought to have been held as part of the first defendants house. According to the learned counsel, the plaintiff has only right to put up eaves over the lane and nothing more. The learned counsel submitted that having found that Exs.A5 and A6 do not mention the suit lane as common lane between the plaintiffs and the defendants house, the Courts below ought to have held that the plaintiff has not proved his case. The learned counsel submitted that even under Ex.B3 the suit lane is not mentioned as common lane. The learned counsel submitted that the plaintiff having claimed the suit lane as common lane belonging to the plaintiff and the defendants and having not admitted the title of the defendants to the suit lane cannot claim easementary right by prescription. According to the learned counsel for claiming the right of easement by prescription, the plaintiff has to admit the title of the defendants to the lane. .13. According to the learned counsel for claiming the right of easement by prescription, the plaintiff has to admit the title of the defendants to the lane. .13. In support of his contention, the learned counsel based reliance on the decision reported in Arunachalam Pillai and others vs. Sorimuthu Pillai ( (2004) 1 MLJ 474 ). In the said decision, in paragraph 11, it is laid down as under:- ."11. The plaintiff cannot be permitted to raise inconsistent pleas. To claim easement, the plaintiff must admit the title of the defendant over the property. If the plaintiff claims easementary right that must be proved by sufficient evidence by the plaintiff. When the plaintiff admits that he claimed ownership and not easement and if he fails to prove ownership, he cannot be allowed to prove easementary right. Ownership and easement are mutually exclusive. Both cannot be pleaded. Therefore, when the plaintiff claimed ownership, he gives up the plea of easementary right. Ultimately, when the plaintiff failed to prove ownership, he cannot revive the plea of easement. In such circumstances, the plaintiff is not entitled for any relief." .14. Countering the said submissions, Mr.S. Parthasarathy, learned Senior Counsel appearing on behalf of M/s. Sarvabhauman Associates for the first respondent submitted that both the Courts below have correctly appreciated the oral and documentary evidence available on record and have relied upon the documents produced by D.W.1 and have rightly applied the legal principles to the facts of the case. The learned Senior Counsel submitted that both the Courts below have considered the recitals contained in Exs.A5, A6 and B3. The learned Senior Counsel submitted that the .lower appellate court has pointed out that in the evidence, the plaintiff has given up the claim of easementary right by prescription and therefore, he is entitled to claim the suit lane as a common lane. 15. In support of the said contention, the learned Senior Counsel relied upon the following decisions:- a. In the decision reported in Palaniswami Naicker vs. Chinnaswami Naicker (1968 (1) M.L.J. 502), the learned Judge of this Court has laid down as under:- "A Full Bench of the Calcutta High Court, however, in Narendranath Barari v. Aboy Charan Chatopadhyaya, took a contrary view. Their Lordships are specifically of the view that a suit for declaration that a ditch belonged to the plaintiff or in the alternative they have acquired a right of easement therein for the passage of their boats is not liable to be dismissed because the plaintiffs claimed in the alternative over the same plot of ground rights (1) of ownership, (2) of easement. Respectfully accepting the ratio of the Full Bench of the Calcutta High Court, I hold that such an alternative plea as above, even if it could be presumed to have been pleaded in the instant case by the plaintiff, is permissible provided the plaintiff presses only one of them at the appropriate time. The plaintiff relied on the right of easement of easement of way at all material times. In the view, therefore, already expressed by me that the plaintiff has secured the right of easement by prescription, though not as an easement of necessity the plaintiff is entitled to succeed in this case." b. In the decision reported in Ayyaswami Gounder and others vs. Munnuswamy Gounder and others (1985 (1) MLJ 36), the Apex Court has laid down as under:- "12. It was further contended that the Illustration (c) to S.8 of the Indian Easements Act relied upon by the High Court had no application to the facts of the present case inasmuch as the plaintiffs case mainly hinges upon their right as co-owerns and not on the basis of prescription by easementary right. Illustration (c) to S.8 of the Indian Easements Act applies where a co-owner seeks to impose an easementary right on the land or any part thereof. In the instant case, however, the plaintiffs claim easementary right only as an alternative ground, but the main ground on which they based their claim is on the right of co-ownership." c. In the decision reported in E. Elumalai Chetty vs. Naina Mudali and others (1986 (II) MLJ 81), the learned Judge of this Court has laid down as under:- "The conception of easementary right cannot go with the claim of title and both are contradictory to each other. A title to the property and a right of easement on it are conceptions totally distinct and contradictory to each other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of another. A title to the property and a right of easement on it are conceptions totally distinct and contradictory to each other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of another. While a right of easement is a right in, to over the property in, to or over the property of another. One is a personal right while the other is annexed to and claimed over the land of another and it runs with it. A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of the other." d. In the decision reported in Ponnan and others vs. Peraman and another ( (2007) 1 MLJ 546 ), it has been laid down as under:- "The Apex Court time and again pointed out that even in a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. 16. The learned Senior Counsel submitted that the plaintiff has given up his claim of easementary right by prescription during the course of trial and therefore, the Courts below are right in granting decree for permanent injunction by recording a finding that the suit lane is a common lane. 17. I have considered the rival submissions and perused the materials available on record. 18. At the outset, it has to be pointed out that the plaintiff mainly based his claim over the suit lane as a common lane and only as an alternative claimed easementary right by prescription and therefore, the lower appellate court is right in observing that the plaintiff has given up his easementary right by prescription during the course of trial. .19. In the decision reported in 1968 (1) MLJ 502 , this Court has held that even if the alternative plea of easementary right by prescription is raised in the plaint, such plea is permissible provided the plaintiff presses only one of them at the appropriate time. .19. In the decision reported in 1968 (1) MLJ 502 , this Court has held that even if the alternative plea of easementary right by prescription is raised in the plaint, such plea is permissible provided the plaintiff presses only one of them at the appropriate time. The plaintiff in this case as pointed out above has not pressed his claim of easementary right by prescription during the course of trial but has mainly relied upon his right over the suit lane as a common lane and therefore, the Courts below have not committed any error in considering such a plea of the plaintiff. 20. A perusal of the evidence of the depositions of P.W.1 and D.W.1 shows that the plaintiff has not claimed easementary right by prescription that would mean that he has given up his claim of easementary right by prescription and therefore, the contention of the learned counsel for the appellant based on the decision reported in ( (2004) 1 MLJ 474 ) cannot be countenanced. 21. For the aforesaid reasons, the additional substantial question of law is answered against the appellant but in favour of the first respondent. 22. Now it has to be seen as to whether the lower appellate court has considered Exs.A5, A6 and B3. 23. A perusal of the judgment of the lower appellate court shows that the lower appellate court has not considered the Exs.A5 and A6 but has made a passing reference to Ex.B3. The lower appellate court on a consideration of Ex.B3 has observed that the suit lane has not been mentioned therein, whereas the trial court has considered the Exs.A5, A6 and B3 and has observed that the suit lane has not been mentioned therein. But, however, both the courts below on a consideration of Exs.A2, A3, A4 and certain admissions made by D.W.1 in his cross examination has come to the conclusion that the suit lane is a common lane belonging to the plaintiff and the defendants. It has to be seen as to whether such a conclusion reached by the courts below could be sustained. As per Ex.A2, dated 29. 1948, western portion of Govindasamy Mudaliars house has been sold. While describing the property dealt with under Ex.A2, it is stated as under:- .24. It has to be seen as to whether such a conclusion reached by the courts below could be sustained. As per Ex.A2, dated 29. 1948, western portion of Govindasamy Mudaliars house has been sold. While describing the property dealt with under Ex.A2, it is stated as under:- .24. Based on this the plaintiff contended that on the west and east of the property dealt with under Ex.A2 lanes are existing and the lane on the west is a common lane. Under Ex.A3, dated 25. 1965, the plaintiff has purchased a part of the property sold under Ex.A2. In Ex.A3, while describing the property purchased thereunder, it has been stated as under:- 25. In Ex.A3 it has been further stated as under:- "tPl;Lf;F nky;g[wk; cs;s re;jpy; fpuajhuUf;fhd mDgt ghj;jpak; cl;glt[k;" .26. Similarly, in Ex.A4 Exchange Deed, dated 25. 1965 it is stated as under:- 27. The property lying on the west of the suit property was purchased by the defendants 2 and 3 under Ex.A5, wherein, it is stated as under:- In Ex.A5, there is no reference to the common lane. Under Ex.A6, one Seetharaman has sold the property to the defendants, wherein, it is stated as under:- But there is no reference to the common lane. Similarly, in Ex.B3 there is no reference to the common lane. 28. The Courts below relying upon the following recitals in Ex.A2, namely, and the physical features of the suit property, namely, that the eaves of the plaintiffs house and that of the defendants houses are protruding into the suit lane and the admission of D.W.1, in his evidence, that the plaintiff is using the lane for carrying out repairs and white washing of his western wall and for plastering of western wall, had come to the conclusion that the lane should be construed as a common lane. This reasoning of the Courts below in the considered view of this court cannot be accepted. Simply because the plaintiff has been allowed to use the lane to carry out repairs to his western wall and whitewash the same, it will not confer any right of ownership over the lane. Similarly, as of the eaves of the plaintiffs property are protruding into the lane, it will not confer any right of ownership over the lane. Simply because the plaintiff has been allowed to use the lane to carry out repairs to his western wall and whitewash the same, it will not confer any right of ownership over the lane. Similarly, as of the eaves of the plaintiffs property are protruding into the lane, it will not confer any right of ownership over the lane. In this context, it has to be pointed out that in Ex.A2 western boundary is not shown as common lane, whereas the eastern boundary is shown as common lane. The words in Tamil, namely, have been consciously used to distinguish the nature of the right and usage. This aspect has not been properly considered by the Courts below. When Exs.A5, A6 and B3 do not refer to the common lane and none of the said documents relied upon by the plaintiff refers to the common lane on the west of his property, the Courts below are not right in holding that the suit lane is a common lane belonging to the plaintiff and the defendants. 29. The contention of the learned Senior Counsel based on the decision reported in 2007 (1) MLJ 546 that even in a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal in exercise of powers under Section 100 C.P.C. is concerned, it has to be pointed out that if the lower appellate court has not considered the recitals in the relevant documents in a proper manner and the inference drawn by the lower appellate court is against the evidence on record and rests on misinterpretation of the recitals in the documents, this Court is entitled to interfere with such erroneous findings. 30. From the above, it is clear that the plaintiff has not proved his case by oral and documentary evidence either that the suit lane is the common lane or he is entitled for easementary right by prescription over that suit lane and therefore, the Courts below in the considered view of this Court has committed error in coming to the conclusion that the suit lane is a common lane belonging to the plaintiff and the defendants, which finding is unsustainable. But as pointed out above, since the courts below on a consideration of entire evidence on record and on the basis of the admission made by D.W.1 in his cross examination, namely, that the plaintiff is using the suit lane for whitewashing and to carry out repairs on the western wall and put up eaves over the common lane, the decree granted by the Courts below is modified to the following effect:- "There shall be a decree for permanent injunction restraining the defendants from interfering with the right of the plaintiff to use the suit lane to whitewash and to carry out the repairs to his western wall and to put up sun shades upto the middle of the common lane. It is made clear that the suit lane is not the common lane as claimed by the plaintiff and such finding recorded by the courts below is hereby set aside." For the aforesaid reasons, the first substantial question of law is answered in favour of the appellant but against the first respondent. The above second appeal is partly allowed, however, there will be no order as to costs.