JUDGMENT : (Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 03.01.2008 passed in A.S.No.54 of 2007 on the file of the Additional District Court/Fast Track Court No. IV, Bhavani, confirming the Judgment and Decree dated 12.01.2007 passed in O.S.No.4 of 2006 on the file of the Principal District Munsif Court, Bhavani). 1. Challenge in this second appeal is made to the Judgment and Decree dated 03.01.2008 passed in A.S.No.54 of 2007 on the file of the Additional District Judge, Fast Track Court No. IV, Bhavani, confirming the Judgment and Decree dated 12.01.2007 passed in O.S.No.4 of 2006 on the file of the Principal District Munsif Court, Bhavani. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. The defendants in O.S.No.4 of 2006 are the appellants in this second appeal. 4. Suit for permanent injunction. 5. The case of the plaintiff, in brief, is that the plaintiff is the owner of the properties in the suit village comprised in R.S. Nos. 112/1, 2, 5, 6, 7, 8, 10, 11, 12, 16, 18, 19, 20 ancestrally as well as by way of purchase under the sale deeds dated 30.01.1984 and 04.12.2003 and the first defendant is the owner of the properties in the suit village comprised in R.S. Nos. 112/1, 2, 5, 6, 7, 8, 10, 11, 12, 16, 18, 19, 20 ancestrally as well as by way of purchase under the sale deeds dated 30.01.1984 and 04.12.2003 and the first defendant is the owner of the properties in the suit village comprised in R.S. Nos. 112/2, 3, 4, 5, 9, 12, 15, 17 and there has been a common Well belonging to the plaintiff and the first defendant in R.S. No. 112/2 and as the said Well had become dilapidated, the plaintiff has put up a Well separately in R.S. No. 112/1 and drawing water from the Well by installing a 5 HP Motor Pumbset for the past 40 years and similarly, the first defendant has also put up a Well separately in R.S. No. 112/3 and drawing water from the Well by installing a separate Pumpset and irrigating his lands and for the past 30 years, the plaintiff has been drawing water and irrigating his lands only through the pipeline laid underneath his lands as well as the land belonging to the first defendant in R.S. No. 112/9 and the pipeline laid underneath in R.S. No. 112/9 is the suit property and the same has been depicted in the plaint plan and the plaintiff has easementary right in taking water through the suit property i.e. the pipeline laid underneath in R.S. No. 112/9 belonging to the first defendant and as he had been using the said pipeline for the past 30 years to irrigate his lands, he has also acquired easementary right over the same by way of prescription. While so, the defendants, on account of enmity over grazing of cattle in the land, attempted to obstruct the plaintiff from taking water through the underground pipeline laid in R.S. No. 112/9 i.e. the suit property and if the defendants endeavour to cut the pipeline, the plaintiff will put to irreparable loss and hardship and hence, with a view to injunct the defendants from cutting the pipeline, according to the plaintiff, he has been necessitated to lay the suit against the defendants for the relief of permanent injunction. 6. 6. The defendants, in the written statement, would put forth the case that the plaintiff's suit is not maintainable either in law or on facts and the allegation that the plaintiff was taking water to his field through S.F.No.112/9 is denied and the suit property belongs to the first defendant and had never been used by the plaintiff to take water through the same and the water drawn by the plaintiff from his Well after reaching S.F. No. 112/8 was let into Mayyappan's land, which is adjoining S.F. No. 112/9 on the East and the channel was formed north to south to the east of S.F. No. 112/9 in Mayyappan's land and thereafter, the water from the channel was diverted to S.F. No. 112/10 and this was arrangement whereby water had been taken by the plaintiff over the ground and about 4 or 5 years ago, the plaintiff had laid the underground pipeline in his land and he made arrangement for the flow of water from his underground pipe to the channel in Mayyappan's land on the East of S.F. No. 112/9 and prior to the institution of the suit, the plaintiff attempted to lay underground pipeline through S.F. No. 112/9 and in connection with the same, the defendant lodged a police complaint and the plaintiff gave up his attempt and subsequently, during night hours, when the first defendant was away from his house, the plaintiff laid underground pipeline in S.F. No. 112/9 and connected it with the existing pipeline which the plaintiff has no right to do so and therefore, the claim of the plaintiff that he had been using the underground pipeline laid in S.F. No. 112/9 for the past 30 years to irrigate his lands is an utter falsehood and the first defendant had cut the pipeline laid in his field, since the same had been laid stealthily and unauthorisedly by the plaintiff. The plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed. 7. In the additional written statement filed by the defendants, it has been mentioned that the plaintiff has no right of easement of necessity to take the water over the defendants' property. 8. In support of the plaintiff's case, PWs 1 & 2 were examined and Exs.A1 to A4 were marked. 7. In the additional written statement filed by the defendants, it has been mentioned that the plaintiff has no right of easement of necessity to take the water over the defendants' property. 8. In support of the plaintiff's case, PWs 1 & 2 were examined and Exs.A1 to A4 were marked. On the side of the defendants, DWs 1 & 2 were examined and Exs.B1 to B3 were marked. Exs.C1 to C4 were also marked. 9. On a consideration of the oral and documentary evidence adduced in the matter and the submissions put forth by the respective parties, the Courts below were pleased to grant the relief prayed for by the plaintiff and impugning the same, the present second appeal has been preferred by the defendants. 10. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: "(i). Whether the courts below are erred in law in decreeing the suit merely on the basis of the inconvenience in using the alternative way even though the inconvenience in enjoyment of the alternative way is not a ground to sustain relief of easement by necessity? (ii). Whether the courts below erred in law in granting the relief on the basis of easement by prescription particularly when there is no legal evidence to support the plea of continuous enjoyment of the suit property over a period of 20 years to sustain the claim of easement by prescription? (iii). Whether in the absence of any specific issue as regards the plea of easement by necessity, and prescription, are the courts below right in coming to the conclusion that the plaintiff has prescribed his right of easement by necessity and prescription especially in the absence of a prayer for declaration of his right and title to the suit property?" 11. The suit has been laid by the plaintiff against the defendants seeking to enforce the easementary right of taking water through the underground pipeline said to have been laid in S.F. No. 112/9, which admittedly belongs to the first defendant. The suit has been laid by the plaintiff against the defendants seeking to enforce the easementary right of taking water through the underground pipeline said to have been laid in S.F. No. 112/9, which admittedly belongs to the first defendant. The plaintiff in para - 3 of the plaint has very vaguely stated that he has acquired easementary right over the suit property by way of necessity and on account of utilising the suit property for irrigating his land for the past 30 years continuously and without any interruption, according to the plaintiff, he has also acquired easementary right over the same by way of prescription. Other than the abovesaid averments, the plaintiff has not come out clearly and in detail as to on what basis, he has endeavoured to claim easementary right over the suit property by way of necessity and by prescription. 12. The defendants, in the written statement, have specifically denied that the plaintiff had acquired easementary right by way of necessity and by way of prescription in the alleged underground pipeline put up in S.F. No. 112/9. 12. The defendants, in the written statement, have specifically denied that the plaintiff had acquired easementary right by way of necessity and by way of prescription in the alleged underground pipeline put up in S.F. No. 112/9. According to the defendants, the property comprised in S.F. No. 112/9 belongs to them absolutely and the plaintiff had never used the said land for taking water to irrigate his other lands as claimed by the plaintiff and according to the defendants, the water had been drawn by the plaintiff from his Well and the water way, after reaching S.F. No. 112/8, was diverted into Mayappan's land, which is adjoining S.F. No. 112/9 on the East and the channel was formed North to South to the East of S.F. No. 112/9 in Mayappan's land and the water from the channel was diverted to the plaintiff's land in S.F. No. 112/10 and by the abovesaid arrangement only, the plaintiff had been irrigating his lands and only prior to the institution of the suit, the plaintiff had stealthily and unauthorisedly during the absence of the defendants laid the underground pipeline in S.F. No. 112/9 and in connection with the same, the police complaint had also been lodged and the same has also been removed by the defendants and therefore, according to the defendants, the underground pipeline said to have been laid underneath in S.F.No.112/9 is not in existence at any point of time and never used by the plaintiff for irrigation as put forth in the plaint and therefore, according to the defendants, the plaintiff has no cause of action to institute the suit. 13. In view of the abovesaid pleas put forth by the respective parties, when the plaintiff seeks the right of easement over the suit property and when the pipeline over which the plaintiff seeks the easementary right is allegedly running underneath in S.F. No. 112/9, which admittedly belongs to the defendants and when the abovesaid case of the plaintiff has been stoutly challenged by the defendants, in toto, as rightly contended by the plaintiff's counsel, in view of the decision of the apex Court reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by Lrs and others), it is clear that when the plaintiff claims the easementary right by way of necessity and prescription and the same has been specifically denied by the defendants, the plaintiff should have sought for the relief of declaration with reference to the alleged easementary right as per law and the plaintiff having failed to seek the relief of declaration, despite the denial of his right by the defendants in the written statement in black and white, on that ground alone, in my considered opinion, in view of the proposition of law outlined by the apex Court in the decision referred to supra, the plaintiff's suit is to be held not maintainable. 14. From the materials placed on record and from the commissioner's report and plan marked in the matter, it is found that the plaintiff had been drawing water through the watercourse as depicted in the commissioner's plan and the watercourse is found to be running North to South adjoining the Mayappan's land running on the eastern side and thereafter, the watercourse is diverted to the plaintiff's land in S.F. No. 112/10 and therefore, when there is no necessity for the plaintiff to take the water through the pipeline laid underneath in S.F. No. 112/9 belonging to the defendants, it is found that the case of the plaintiff that the pipeline underneath in S.F. No. 112/9 has been in existence and used by the plaintiff for the past 30 years continuously and without any interruption, as such, cannot be accepted in any manner. To sustain the case that the plaintiff had been using the alleged pipeline laid underneath in S.F. No. 112/9 for the past 30 years continuously and without any interruption, there is no acceptable and reliable evidence projected on the part of the plaintiff. To sustain the case that the plaintiff had been using the alleged pipeline laid underneath in S.F. No. 112/9 for the past 30 years continuously and without any interruption, there is no acceptable and reliable evidence projected on the part of the plaintiff. When it is found that the plaintiff's sale deeds marked as Exs.A1 & A2 do not contain any reference about the pipeline said to have been running underneath the defendants' property in S.F. No. 112/9 and when the plaintiff has failed to establish that he has been enjoying the easementary right qua the underneath pipeline in S.F.No.112/9 from the days of his predecessors in interest continuously beyond the statutory period, in such view of the matter, as rightly put forth by the defendants' counsel, the plaintiff's claim to the socalled easementary right by way of prescription over the suit property, as such, cannot be believed and accepted and even the first appellate Court has not gone into the question of the plaintiff's claim of easementary right by way of prescription over the suit property by way of enjoying the same beyond the statutory period and therefore, in the absence of any material placed by the plaintiff worth acceptance evidencing at the foremost that the pipeline underneath in S.F.No.112/9 was in existence for the past 30 years and that the same had been used by the plaintiff continuously and uninterruptedly and in such view of the matter, particularly, when the plaintiff's sale deeds do not depict the use of the suit property as an easementary right in any manner, it is found that the case of the plaintiff that he had been using the alleged underground pipeline in S.F.No.112/9 by exercising easementary right by prescription cannot be believed and the Courts below have totally erred in accepting the case of the plaintiff without any basis or material supporting the said case. 15. 15. Furthermore, as could be gathered from the materials placed on record, it is found that the plaintiff has alternative watercourse through the land of Mayyappan's land on the eastern side and therefore, when it is seen that the normal running of the watercourse north to south is flowing from the plaintiff's Well and the same is running in the channel up to Mayappan's land lying on the eastern side and thereafter, the channel takes the course to S.F.No.112/10 belonging to the plaintiff's to say that the plaintiff had taken the watercourse by way of a pipeline laid underneath the defendants land in S.F.No.112/9, as such, cannot be believed and accepted. The Courts below though noting that the plaintiff has an alternative way to irrigate his lands and he is required to use any underground pipeline in the defendants' property to take the water, however, on the footing that the plaintiff had been using the watercourse available in the Mayappan's land only on the basis of the permission granted by Mayyappan and as the said permission could be revoked by Mayappan at any point of time, according to the Courts below, the said alternative watercourse cannot be termed or held to be a permanent one and therefore, according to the Courts below, it is only through the pipeline laid underneath in S.F.No.112/9, the plaintiff has the easementary right to irrigate his lands and thereby the plaintiff has acquired the right of easement by way of necessity. However, as rightly contended by the defendants' counsel, when from the materials available on record, the plaintiff is found to be having other mode of irrigating his lands, particularly, through the land belonging to Mayyappan and the commissioner's report also pointing to the same and when the same has also been admitted by PWs1 & 2 that there is an alternative way for irrigating the plaintiff's land, when there is no material to hold that the said alternative way was only based on the permission granted by Mayyappan and also when there is no material that the so-called permission said to have been given by Mayyappan could be revoked at any point of time, in such view of the matter, the Courts below are found to be totally incorrect in holding that the plaintiff has established his easementary right by way of necessity over the suit property i.e. taking the water through the alleged underground pipeline in S.F.No.112/9. As contended by the defendants' counsel, based on the inconvenience in using the alternative way, that by itself would not be a ground enabling the plaintiff to claim easementary right over the suit property by way of necessity. Therefore, the claim of the plaintiff that he has acquired the easementary right by way of necessity over the suit property falls to the ground. 16. At the foremost, the plaintiff has miserably failed to establish that the pipeline had been in existence underneath in S.F.No.112/9 as put forth by him over a considerable period of time and that, he had been using the same by way of easement as claimed by him and on the other hand, as above pointed out, when the plaintiff has the alternative way and also failed to establish that he had been using the suit property for the past 30 years continuously and uninterruptedly and in addition to that, when the defendants have stoutly disputed the alleged claim of easementary right projected by the plaintiff, still the plaintiff having not endeavoured to seek the relief of declaration qua the easementary right sought for by him, in such view of the matter, the suit for bare injunction without the relief of declaration is found to be not maintainable in law. 17. As above pointed out, the plaintiff has laid the suit seeking the relief of permanent injunction. 17. As above pointed out, the plaintiff has laid the suit seeking the relief of permanent injunction. To sustain his alleged claim of easementary right over the suit property, other than vaguely stating that he has easementary right over the suit property by way of necessity and prescription, the plaintiff has not come out clearly as to on what basis he has claimed the abovesaid easementary right in the plaint. The plaintiff has not even pleaded and proved that the easementary right claimed by him was enjoyed independent of any agreement with the owner of the property over which the right is claimed and the plaintiff has also not pleaded that his dominant tenement and the defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used and the plaintiff has also not pleaded that he has no other alternative way to take the water for irrigating his lands other than the suit property and when it is found that a suit for an enforcement of an easementary right relates to a right possessed by a dominant owner/occupier over the property not his own, having the effect of restricting the natural rights of the owner/occupier of such property and for seeking the enforcement of such easementary right, has to specifically come out with the clear case as to on what basis, he seeks to enforce the easementary right projected by him. It is further noted that the facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right and the plaintiff having not come forward with the clear pleas as to on what basis he is claiming the right, other than making very vague pleas as above referred to, in such event, it cannot be assumed or inferred that the case of easementary right projected by the plaintiff is well found and the abovesaid aspects of law had been outlined by the apex Court in the decision reported in (2008) 17 Supreme Court Cases 491 (Bachhai Nahar Vs. Nilima Mandal and another). The position of law, with reference to the same, has been outlined by the apex Court in the abovesaid decision as follows. Nilima Mandal and another). The position of law, with reference to the same, has been outlined by the apex Court in the abovesaid decision as follows. "A. Civil Procedure Code, 1908 - S.100 - Second appeal - New case made out - Propriety - High Court in a title suit granting relief based on easementary rights which was not pleaded - Sustainability of - Respondent- plaintiffs' suit for declaration, possession and injunction dismissed by first appellate Court on the ground that neither there was encroachment by appellant defendants nor did the suit land belong to respondent-plaintiffs - High Court though holding that respondent - plaintiffs had not title over suit land, granted injunction by making out a new case that plaintiffs had an easementary right to use the schedule property as a passage - in the absence of pleadings and an opportunity to the first defendant to deny such claim, held, High Court not have granted the relief of injunction by assuming that plaintiffs had an easementary right to use the schedule property as a passage - At best liberty could have been reserved to plaintiffs to file a separate suit for easement - Easements Act, 1882 - Ss.33 and 35 - Relief under, different from relief under provisions of Specific Relief Act, 1963 - Specific Relief Act, 1963 - Ss.36 & 37. B. Civil Procedure Code, 1908 - S.100 and Or.6 R.1, Or.7 R.7, Or.14 R.1 and Or.18 R.2 - Second appeal - Relief - Relief on the strength of evidence alone (without pleading and an opportunity of hearing) - Permissibility - Without pleading and an opportunity of hearing to defendant, no amount of evidence, held, can be looked into to grant any relief - Exceptions and permissible limits, stated - Practice and Procedure - Relief - Basis for C. Civil Procedure Code, 1908 - S.100 - Second appeal - Relief - Expeditious justice, by flouting fundamental rules of CPC, held, is not permissible. D. Civil Procedure Code, 1908 - Or.6 Rr.1 to 3, Or.2 Rr.1 & 2 and Or.14 Rr.1,3 & 4 - Pleadings and issues - Object and purpose, stated The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. The object of issues is to identify from the pleadings the questions or points required to be decided by the Courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. 18. A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right. A suit for declaration of title and possession relates to the existence and establishment of natural rights which inhere in a person by virtue of his ownership of a property. On the other hand, a suit for enforcement of an easementary right, relates to a right possessed by a dominant owner/occupier over a property not his own, having the effect of restricting the natural rights of the owner/occupier of such property. 19. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a watercourse etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. 20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. 20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a license and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to watercourse. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence. 21. A right of easement can be declared only when the servient owner is a party to the suit....." 18. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence. 21. A right of easement can be declared only when the servient owner is a party to the suit....." 18. Applying the abovesaid principles of law to the case at hand, when it is noted that the plaintiff has failed to come forward with the necessary facts enabling him to make out a particular claim of easementary right and thereby, the defendants are prevented from placing their defence version adequately or enabling them to repudiate or challenge the claim of the plaintiff to the alleged easementary right and as above pointed out, when the plaintiff has also miserably failed to establish and substantiate the claim of easementary right put forth by him by acceptable and reliable materials and when as above discussed, the plaintiff is found to have alternative way to take the water to his lands and despite the denial of the plaintiff's claim of easementary right by the defendants vehemently, the plaintiff having not sought the relief of declaration qua the same, in all, it is found that the plaintiff cannot be granted the relief prayed for. 19. The reasonings and conclusions of the Courts below for upholding the plaintiff's case are found to be totally against the principles of law outlined by the apex Court as well as on the basis of the improper and incorrect appreciation of the pleas, evidence adduced in the matter and hence, the reasonings and conclusions of the Courts below for accepting the plaintiff's case could only be termed as totally perverse, illogical and irrational and in such view of the matter, the judgment and decree of the Courts below upholding the plaintiff's case are liable to be set aside. The substantial questions of law formulated in this second appeal are accordingly answered in favour of the defendants and against the plaintiff. 20. The substantial questions of law formulated in this second appeal are accordingly answered in favour of the defendants and against the plaintiff. 20. For the reasons aforestated, the Judgment and Decree dated 03.01.2008 passed in A.S.No.54 of 2007 on the file of the Additional District Judge, Fast Track Court No. IV, Bhavani, confirming the Judgment and Decree dated 12.01.2007 passed in O.S.No.4 of 2006 on the file of the Principal District Munsif Court, Bhavani, are set aside and resultantly, the suit laid by the plaintiff in O.S.No.4 of 2006 is dismissed with costs and accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.