JUDGMENT 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.30 of 2004 dated 29.07.2004 in allowing the appeal by setting aside the judgment and decree passed by the I Additional District Munsif, Bhavani in O.S.No.355 of 1999 dated 17.09.2003 in dismissing the suit. 2. The plaintiff is the appellant and the defendants are the respondents. 3. The case of the plaintiff before the trial Court would be thus:- 3(1) The property mentioned in the schedule hereunder and herein after called as the suit property is a Natham Poromboke. It has been called as 'Pavadi' Rathukana Theru from the time immemorial by the general public. The Bhavani town is well known for its textile goods like handloom, carpets, Bedsheets, Handloom sarees and towels for more than hundred years. Mostly the people of Sengundha Mudaliar weaving community are residing around the suit property. More than 1000 families are living on their wages earned by weaving the above said textile goods. 3(2) The weaving community and their predecessors around the suit property are using the same as 'Pavadi' for more than 100 years. They are using the suit property for storching their yarn and to do some other works pertaining to the same such as processing of yarn more than 100 years without any interruption for the above said period. In view of the user of the suit property, the street which runs along the southern side of the same is being called as 'Pavadi' street for more than 100 years. The weaving community has a right of easement over the suit property. They have also perfected their easementary right as enjoyment of the community has been exercising such a right over the suit property without any interruption for more than 100 years. The community has no other place to be used as a 'Pavadi' and hence they are entitled to use the same easement. 3(3) While so, during the year 1969, the then panchayat Board, proposed to erect a public stage to hold public meeting in the suit property and on finding the user of the same by the community people and said proposal was dropped. 3(3) While so, during the year 1969, the then panchayat Board, proposed to erect a public stage to hold public meeting in the suit property and on finding the user of the same by the community people and said proposal was dropped. Further, when the same panchayat proposed to pass a resolution to use the suit property for running a vegetable market in the year 1976, the proposal also was dropped in view of the long user and its necessity for the weaving community. Whileso, on 6.1.1983 a meeting was held in the Tahsildar's office regarding shifting the existing vegetable market on the road side. The said meeting was attended to by the general public, politicians, officials of the Revenue and Municipality and ended with the proposals of shifting the market to the weekly shandy which was being kept idle and is very near to the existing market. The said decision was dropped on the representation of the weaving community. 3(4) Subsequently the vegetable market shifted to some other place. Hence, the suit property is continuously used as Pavadi. On 14.7.1999, the second defendant along with the officials removed the stones in the Pavadi and kept them in Taluk Office. Inspite of representation by the plaintiff, the second defendant removed all the stones in the suit property. The second defendant had no manner of right to remove the stones. The plaintiff submits that the stones were embedded in the earth for a very long period. In these circumstances, the action of the second defendant is illegal and not maintainable in law. Hence, the plaintiff has filed the suit for mandatory injunction to restore the stones in the suit property. Further, as the defendants are illegally attempting to obstruct the plaintiff's community people of using the suit property, as Pavadi, the plaintiff seeks the relief of declaration of their easementary right and for the permanent injunction against the defendants. Hence, the suit. 4. The contentions raised by the defendants before the trial court would be thus :- The allegations made in para 3 of the plaint that the suit property is a Pavadi situated in natham poramboke and the same has been existing from time immemorial and that the weaving community people are mainly depending upon weaving profession are denied as false and incorrect. It is false and incorrect to state that the suit property has been enjoyed by the plaintiffs and predecessors. It is denied to state that excepting the suit property, the plaintiffs have no other place for stretching yarn. The contention that the plaintiffs perfected their right over the suit property by way of easement by prescription and easement by necessity also is not admitted as true and correct. 4(2) The averments in para 5 of the plaint are not admitted as true and correct. The allegations made in the plaint are all denied as false and fictitious. The suit property is required for the purpose of expanding the road as all the heavy vehicles entering in the Bhavani town from Bhavani river bridge are plying in the Pavadi road which is less than the extent requires. The defendant has taken steps to expand the road on the suit property. The defendant is maintaining the suit property. At present there is no use or enjoyment by the plaintiffs as alleged in the plaint. 4(3) The defendant is the owner of the suit property. The suit property is already demarcated as road. The street number is 120. The breadth of the street on the west is 78'9" and 90' 3 ¼" feets on the east. 4(4) There is no cause of action for the suit. 4(5) Therefore, the defendantprays for dismissal of the suit with costs. 5. Apart from the aforesaid suit, two other suits in O.S.No.149 of 1999 and O.S.No.224 of 2000 filed against the plaintiff and others, were clubbed together with O.S.No.355 of 1999 and trial was entered and common evidence was recorded. After appraisal of the evidence adduced by both parties, the trial court had come to the conclusion of granting declaratory decree and permanent injunction against the defendants and the mandatory injunction sought for by the plaintiff was dismissed. Aggrieved against the said judgment and decree passed by the trial court on 29.07.2004, the defendants preferred an appeal before the First Appellate Court in A.S.No.30 of 2004. The First Appellate Court heard both parties and had come to the conclusion of reversing the judgment of the trial court and thus the suit was completely dismissed. 6. Aggrieved against the judgment and decree passed by the First Appellate Court, the plaintiff has preferred the present appeal. 7. The First Appellate Court heard both parties and had come to the conclusion of reversing the judgment of the trial court and thus the suit was completely dismissed. 6. Aggrieved against the judgment and decree passed by the First Appellate Court, the plaintiff has preferred the present appeal. 7. On admission, this Court has formulated the following substantial questions of law to be decided in this appeal. "Whether the judgment of the appellate Court is vitiated in law since it is contrary to the admission of the 4th defendant in the suit about the existence of the plaintiff's right?” 8. Heard Mr.V.Bharathidasan, learned counsel for the appellant/plaintiff and Mr.M.Venugopal, learned Additional Government Pleader(C.S) for the respondents/defendants. 9. The learned counsel for the appellant/plaintiff would submit in his argument that the lower appellate court failed to appreciate that the suit property namely "Pavadi" was in existence for more than 100 years, and it was sought to have been annexed with the Highways Department on the foot of a Government Order. He would further submit that by virtue of granting declaratory decree, there would not be any hindrance to the public and the very flow of traffic will not in any way be obstructed. He would also submit that the reason given by the First Appellate Court that the dismissal of the suit would facilitate the very flow of traffic would not in any way justifiable for it is over coming the right accrued to the plaintiff. He would further submit that the document in Ex.B10, a Commissioner report filed in O.S.No.11 of 1983 would establish the existence of Pavadi. He would further submit that the order of Assistant Collector in the year 1969 that there should not be any construction of any public platform in the Pavadi street would go to show that the suit Pavadi cannot be assigned or transferred to the Highways Department by the Municipality. He would further submit that the classification of the suit property being natham and was used by the plaintiff and other weavers as Pavadi, cannot be transferred to the highways department without following the procedures of acquisition. He would further submit that the plaintiff was entitled to use the said street or Road as Pavadi without detriment to the traffic. He would further submit that the classification of the suit property being natham and was used by the plaintiff and other weavers as Pavadi, cannot be transferred to the highways department without following the procedures of acquisition. He would further submit that the plaintiff was entitled to use the said street or Road as Pavadi without detriment to the traffic. He would also submit that the Government Order passed for handing over the property to Highways Department did not indicate that the right of easement accrued to the plaintiff with the properties have also been handed over to the first respondent and the claim of the plaintiff would not be defeated. He would also submit in his argument that the Commissioner's report with sketches produced in Exs.C1 to C6 would show that sufficient space have been left out to use as Pavadi and it would also show that the plaintiff was in effective possession and enjoyment of the said property. Therefore, he would request the Court to allow the appeal and thus, jugment and decree passed by the trial court may be restored, after setting aside the judgment and decree passed by the First Appellate Court. 10. The Government Pleader (C.S) would submit in his argument that the property in question was classified as natham in R.S.No.825/1, Bhavani village and the said land was originally belonging to 3rd defendant, Bhavani Municipal Corporation and the 3rd defendant was maintaining the said land and subsequently, it was transferred to Highways Department by virtue of G.O.(D)No.384, dated 13.09.1999 and now the 4th defendant is in the possession of the said property and the said property is belonging to public and it is being used as a connecting road for main roads of the town and thereby the traffic congestion has been eased to certain extent. He would also submit that the plaintiff is to prove the long usage of the said property as 'Pavadi' by the weavers and also to establish the easementary right by long usage. He would further submit that the property being handed over to the 4th defendant, Highways Department and it has been used as a road, it cannot be used for Pavadi by the weavers. He would further submit that the 4th defendant did not remove any stones on 14.07.1999 as stated by the plaintiff. He would further submit that the property being handed over to the 4th defendant, Highways Department and it has been used as a road, it cannot be used for Pavadi by the weavers. He would further submit that the 4th defendant did not remove any stones on 14.07.1999 as stated by the plaintiff. He would also produce certain photographs for the perusal of the Court, to which other side counsel objected to, since they were not produced before the trial court or First Appellate Court. The learned Additional Government Pleader(C.S) would further submit in his argument that the suit was not filed after issuance of Section 80 CPC notice, which is mandatory and therefore, the First Appellate Court had rightly come to a conclusion that it is being used as a road and therefore there would be no easementary right for the plaintiff and therefore there is no reason to interfere with the judgment and decree passed by the First Appellate Court and therefore, the second appeal may be dismissed. 11. I have given anxious thoughts to the arguments advanced on either side. 12. The suit was filed by the plaintiff before the trial Court for the following relief:- "a. Declaring the right of plaintiff and the weaving community residing around the suit property to use the suit property as pavadi; b. Granting a permanent injunction restraining the defendants their men and subordinates from interfering with the peaceful user of the suit property by the plaintiff and the Sengundha Mudhaliar weaving community residing around the same as Pavadi; c. Granting a mandatory injunction directing the defendants to restore the suit property by way of refixing the removed stones as it was earlier; d. Awarding the costs of the suit." 13. Among those reliefs sought for by the plaintiff, the reliefs except the relief of mandatory injunction have been granted by the trial Court and against which, the appeal was preferred by the 1st respondent/4th defendant before the First Appellate Court and the same was allowed by the said Court after setting aside the judgment and decree passed by the trial Court. 14. The trial court had categorically found that the suit property was used by the plaintiff for several years as 'Pavadi' and had granted a declaration and permanent injunction regarding easementary right claimed by the plaintiff. 14. The trial court had categorically found that the suit property was used by the plaintiff for several years as 'Pavadi' and had granted a declaration and permanent injunction regarding easementary right claimed by the plaintiff. However, the First Appellate Court in its judgment had mainly harped upon the Government Order passed in G.O.Ms.D.No.384, dated 13.08.1999 that the property was assigned to the 4th defendant from the 3rd defendant municipality and therefore, the 4th defendant is the owner and he is to use the said property as a road and due to the change of circumstances and due to passage of time, the suit property should have been used as road and therefore, it had set aside the judgment of the trial court and dismissed the suit filed by the plaintiff. However, the lower appellate court had found that the suit property was a "natham poromboke" and during 1969, the decision reached by the Panchayat Board to put up a public platform in the property was deferred by the Government at the instance of the weavers and thereafter, in the year 1976, a resolution was passed by the Panchayat for bringing the daily market in the place and it was also dropped due to the objections raised by the plaintiff weavers. It was also found by the First Appellate Court that due to the change of circumstances and due to the passage of time, the right of the plaintiff in the property cannot be claimed and it has to be used as a road. 15. I could find from the reasons and findings reached by the trial court in its judgment that the plaintiff / weavers have established their right to use the suit property as "Pavadi" for about 100 years and they are having a right of easement to use the said place as Pavadi for their livelihood. However, the said findings of trial court was not set aside by the First Appellate Court. The said fact that the suit property was used as Pavadi and it was referred as the southern boundary on various documents including Ex.A2 and the decision of Assistant Collector to drop the constructing of a public platform in the suit property due to the objection of the weavers as seen from the news paper reports have not been controverted in the First Appellate Court's judgment. In fine, I could see that the finding of the trial court that the plaintiff and the weavers have got easementary right over the suit property to do their profession by using the suit property as Pavadi was also not varied. The only reason found by the First Appellate Court is that the suit property has been assigned to 4th defendant by the Government from the possession of the 3rd defendant / Municipality. The present suit has been filed on 16.07.1999, however, the said Government Order passed by the Government in G.O.Ms.D.No.384/1 dated 13.08.1999 which is subsequent to the filing of the suit. Even otherwise, the Government Order is valid till it is set aside and the ownership has been passed from the 3rd defendant to 4th defendant. The said ownership could be passed with the right of easement already exercised by the plaintiff and other weavers in the suit property since the right of easement is part and parcel of any property, which would go along with the property. The lower appellate court did not apply the said principle of law but had set aside the entire decree without any valid reason. The reasons alleged for setting aside the judgment and decree of the trial court was that the suit property should be used as road for the welfare of the public. No doubt, there was a road laid on the southern side of the suit property and the road is admittedly used for traffic. But the suit property is lying on the north of the road used for the traffic and the suit property was also subjected to easementary right of the plaintiff. It is also an admitted fact that the stones imbedded in the suit property was for the purpose of using the suit property as Pavadi and it is still in tact. The admission of 4th defendant in his written statement that those stones imbeded in the suit property have not been removed so far would show the presence of the stones still in the suit property. Therefore, the prayer sought for by the plaintiff that they have got easementary right over the suit property for using it as Pavadi, cannot be rejected by the First Appellate Court. The way in which the judgment was passed by the First Appellate Court would show that it was perverse. Therefore, the prayer sought for by the plaintiff that they have got easementary right over the suit property for using it as Pavadi, cannot be rejected by the First Appellate Court. The way in which the judgment was passed by the First Appellate Court would show that it was perverse. The courts are supposed to render justice on the basis of the rights accrued to the parties when they approached the Court when they want to establish their right before the Court. The plaintiff, having established their right shall not be refused from granting the relief sought for by them, without any valid reason. 16. The judgment of this Court reported in (2007) 1 MLJ 499 in between KamireddiSattiaraju and Kamireddi Mangayamma(died) Vs.Kandamuri Boolaeswari would also be helpful for the present case. The dictum laid down by this Court would be thus:- "27. In the recent decision of the Supreme Court reported in 2002 (2) LW 399 (supra), the Supreme Court has set out the legal position as under in paragraph 15: "15.Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these statutory guidelines shall be in the forefront of the mind of the Court. The trial Court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses considered the relevant facts and reached a conclusion. The appellate Court should not have reversed that decision regarding these facts, and, in our view, the appellate Court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract." 28. In the light of the above decision of the Supreme Court in 2002 (2) LW 399 (supra), when we consider the impugned judgment of the learned Single Judge, we are of the view that the trial Court, which had the advantage of observing the demeanour of P.W.1 in the course of recording the evidence and in whose opinion, the claim of the respondent/plaintiff was not to have been lightly interfered with by the learned Single Judge." 17. It is laid down in the judgment of Hon'ble Apex court reported in (2007) 4 SCC 163 (Chinthamani Ammal vs. Nandagopal Gounder and another) that the facts decided by the trial court should not normally be disturbed by the first appellate court unless there is a grave error in the said finding. The relevant portion as found in para 19 runs as follows: "19. In Madholal Sindhu v. Official Assignee of Bombay (AIR 1950 FC 21) it was observed: "It is true that a judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment." 18. This view is also followed in the judgment of this Court reported in 2010 -2 – LW – 851 (Manoharakumari..vs. Anitha and another) "28. Observing that when the finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, in 2008 (3) CTC 528 (Jagdish Singh v. Madhuri Devi), in the Supreme Court held as follows:- "25. .... the Appellate Court is expected, nay bound, to bear in mind a finding recorded by the trial Court on oral evidence. It should not forget that the trial Court had an advantage and opportunity of seeing the demeanour of witnesses and therefore, trial Court's conclusions should not normally be disturbed. No doubt, the Appellate Court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial Court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial Court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable." 19. In the said circumstances, I am of the considered view that the judgment and decree passed by the First Appellate Court is liable to be set aside and the judgment and decree passed by the trial Court are consequently, be restored. 20. In the said circumstances, I am of the considered view that the judgment and decree passed by the First Appellate Court is liable to be set aside and the judgment and decree passed by the trial Court are consequently, be restored. 20. For the foregoing discussion, I am of the considered view that the judgment and decree passed by the First Appellate Court are to be set aside, accordingly, set aside and the second appeal is allowed. Consequently, the judgment and Decree passed by the trial court are restored. No order as to costs.