JUDGMENT : The sole defendant in O.S. No.202/1982 on the file of Civil Judge (Jr. Dn.), Mandya, has come up in this second appeal impugning the concurrent findings of both the courts below in recognising the rights of the plaintiffs to use a portion of defendant’s property bearing Sy. No.51/1 of Bettadahalli village, Dudda Hobli, Mandya Taluk, as road to reach Mudagandoor Bettahalli road by way of easement by necessity. 2. Brief facts leading to filing of this second appeal are as under: The suit in O.S.No.202/1982 was filed by owners of the land bearing Sy. No.51/2, 51/2A which are situated on the northern side of the suit schedule property bearing Sy. No.51/1 belonging to defendant. The case of plaintiffs Nos.1 to 3 is that they own peace of land on the northern side of Sy. No.51/1 belonging to the defendant. According to them, Mudagandoor Bettahalli road is situated on the southern side of defendant’s property and to reach the same they have to pass through the land of defendant. It is also their case that from time immemorial, a portion of defendant’s land is used as a road to reach Mudagandoor Bettahalli from their land, which portion according to them is identified as ‘ABCD’ in the suit sketch filed along with the plaint. When the said suit was filed, initially, they filed an application seeking appointment of the Commissioner which was considered by the Court below. Accordingly, the Court Commissioner was appointed, who inspected and surveyed the said land, thereafter, prepared a report and filed it into Court. Wherein the sketch prepared by him and also the report which is furnished by him along with spot mahazar are found at Ex.P.3 and P.4. It is necessary to mention that the exercise of appointment of Court Commissioner was considered immediately on filing of the suit even before summons was issued to defendant. In fact, by the time the defendant entered appearance, the Court Commissioner’s work was already completed and the report was submitted. The defendant tried to set up a defence contending that the plaint averments are erroneous and that the plaintiffs have an alternate road to reach Mudagandoor Bettahalli. Since the said road is circutous, they wanted to have a short cut to Mudagandoor Bettahalli main road through defendant’s land. The defendant tried to set up a defence contending that the plaint averments are erroneous and that the plaintiffs have an alternate road to reach Mudagandoor Bettahalli. Since the said road is circutous, they wanted to have a short cut to Mudagandoor Bettahalli main road through defendant’s land. According to the defendant, at no point of time, plaintiffs had right to use any portion of suit land to reach the said main road. It was also contended that there was no right of easement by necessity available to them. With these pleadings, the Court below proceeded to frame, in all, five issues, they are: (1) Whether the plaintiffs prove that ‘ABCD’ cart track is in existence since time immemorial on the land belonging to the defendant bearing Sy. No.51/1 ? (2) Whether the plaintiffs have been making use of ‘ABCD’ cart track and acquired easementary right by prescription ? (3) Whether there is attempt on the part of the defendant to interfere with the plaintiffs’ right to use ‘ABCD’ cart track ? (4) Whether they are entitled to the relief of declaration and injunction as prayed for ? (5) To what decree or order, the parties entitled? 3. In the proceedings before the trial Court, on behalf of plaintiffs, in all, four witnesses were examined. P.Ws.1 and 2 are independent witnesses who are residents of same village. So far as P.W.3 is concerned, he is an advocate Commissioner who was appointed by the courts below to inspect and report the existence of the road in question. P.W.4 is the second defendant in the original suit. The evidence of all the witnesses, more or less, was in consonance with the pleadings in the plaint except that of P.W.1 Patel Channamarigowda who stood by the plaintiffs while giving evidence in examination in chief. However, in the cross examination, he made a “U” turn in stating that there exists an alternate road for the plaintiffs to reach Mudagandoor main road and that they have been continuously using several roads to reach Mudagandoor main road, one of that is through the land of Uradigowda, which is situated on eastern side of plaintiffs’ property and another is on the northern side of the property of the plaintiffs to reach the temple road and other roads were also indicated. Per contra, on behalf of the defendant, she examined in all four witnesses as D.Ws.1 to 4. Per contra, on behalf of the defendant, she examined in all four witnesses as D.Ws.1 to 4. The defendant herself is examined as D.W.1 and the other three witnesses are the residents of the same village. The document which are marked on behalf of the plaintiffs is the road sketch, which is produced along with the plaint, other documents which are marked in the proceedings are at exhibit ‘C’ series which is commission warrant, memo of instructions, rough sketch, spot mahazar and report. 4. The trial Court on appreciation of pleadings, both oral and documentary, proceeded to answer all the issues which were framed by it in the affirmatives and consequently, decreed the suit of the plaintiffs by judgment and decree dated 17.01.2000 in O.S.No.202/1982. Being aggrieved by the said decree, the defendant preferred an appeal in R.A.No.17/2000 which was subsequently renumbered as R.A. No.69/2005 on the file of Fast Track Court-4, Mandya, wherein the lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence, in the light of findings given in the Court below on issues 1 to 5 and also considering the grounds urged before the trial Court, proceeded to frame two points for consideration as under: i. Whether the appellant has made a ground to show that the conclusion arrived at by the trial Court and the finding given by the trial Court on all the issues are erroneous, perverse and devoid of merits ? ii. Whether the aforesaid judgment and decree calls for interference. 5. The lower appellate Court, on re-appreication of the entire material, answered both the points for consideration in negative and consequently dismissed the appeal of defendant by judgment dated 07.02.2005, resulting in the defendant in the original suit preferred this Second Appeal which was admitted on 12.10.2012 to consider the following substantial questions of law: a. Whether the Courts below are justified in holding that the plaintiffs have proved the existence of cart track road in the land of the defendants and they have got the easementary rights in the said cart tract to reach their lands and whether the said finding of the Courts below is based on proper appreciation of oral and documentary evidence on record ? b. To consider any other substantial questions of law which would arise for consideration at the time of hearing ? 6. b. To consider any other substantial questions of law which would arise for consideration at the time of hearing ? 6. In this proceeding, though the respondents-plaintiff’s 1(a) to 1(f), 2 and 3 in the Courts below were duly served, they have remained unrepresented. 7. Hence, this matter was taken for final disposal in the presence of the learned counsel Sri K.S. Nagaraj appearing for the appellant. 8. Heard learned counsel for the appellant. Perused the lower Court records and also the judgment of both the Courts below in the light of the grounds urged as well as the substantial questions of law framed for consideration by this Court. 9. On reappreciation of the material available on record, this Court would find that the substantial questions of law are required to be answered in affirmative for the following reasons: The first and the foremost thing to be observed in this proceedings is that the plaintiffs and defendants are owners of different parts of land bearing Sy.No.51 of Bettahalli village, Dudda Hobli, Mandya Taluk. Undisputedly large extent of Sy.No.51 is divided and phoded into several sub numbers. Sy.No.51/1 is the suit property which belongs to defendant in the original suit. The said property is abutting Mudagandoor village which runs east to west is not in dispute and the same belongs to defendant. Plaintiffs are the owners of three bits of land which is situated immediately adjacent to northern portion of suit schedule property of the defendant. The 1st plaintiff’s property is situated immediately on the northern boundary of the suit schedule property and the 2nd plaintiff’s property is situated immediately on the northern boundary of 1st plaintiff’s property. Similarly, the 3rd plaintiff’s property is immediately on the northern boundary of the 2nd plaintiff property. To the east of the property of plaintiffs and defendant is the property of Uradigowda. There are other properties belonged to other persons of same village are also situated on Northern side of plaintiff properties. On the western side of plaintiffs property there is a gorge (halla) in the government land. As could be seen, the properties of plaintiff Nos.1 to 3, which are Sy. No.51/2 and 2A and 2B are land locked and they do not have direct access to main road except through the neighbouring land. Hence, the plaintiffs would naturally have right to reach the main road through Sy. As could be seen, the properties of plaintiff Nos.1 to 3, which are Sy. No.51/2 and 2A and 2B are land locked and they do not have direct access to main road except through the neighbouring land. Hence, the plaintiffs would naturally have right to reach the main road through Sy. No.51/1 which is a portion of the larger extent of Sy. No.51, in which survey number all the properties of the plaintiffs and Defendant are phoded, therefore, by means of necessity, they have right to pass through land bearing Sy. No.51/1 to reach Mudagandoor Bettahalli main road. It is their case that same was the practice from time immemorial and ‘ABCD’ portion in the suit sketch which is Ex.P.1 is the road through which they used to reach the main road, the said assertion of the plaintiffs is not only supported by the evidence of other witnesses except P.W.1 and also in the other documentary evidence which are made available in the courts below. It is also seen that the aforesaid facts have been supported by the Commissioner in the sketch prepared and filed by him which is marked as Ex.R.3 and in the report filed by him which is at Ex.R.4. Exs.R.3 and R.4 would also indicate the existence of the road as averred in the plaint. In that view of the matter, both the Courts below have rightly considered the case of the plaintiffs. However, while doing so, an error is occurred in recognizing such right under Section 15 of the Act as if it is by way of prescription by continuous use of said road for more than 20 years by plaintiffs and their predecessors. Accordingly the Courts below have held that prescriptive right is created in favour of plaintiff. Admittedly, the properties of plaintiffs are bearing sub-numbers of the very same survey number No.51 of which the defendant land in Sy. No.51/1 is also a part of Sy.No.51, which is phoded into several bits. In the above circumstance it is held that plaintiff have right to reach Mudagandoor Bettahalli main road through defendants suit schedule land by way of necessity through ABCD road as shown in Ex.P.1 as well as in Ex.R.3. In that view of the matter, this Court would answer the aforesaid substantial questions of law in the affirmative by accepting the findings of the Courts below. 10. In that view of the matter, this Court would answer the aforesaid substantial questions of law in the affirmative by accepting the findings of the Courts below. 10. Accordingly, this second appeal fails and is hereby dismissed. Consequently, the judgments of both the courts below are confirmed.