JUDGMENT
M. Karpagavinayagam, J.
1. Jabamani, the appellant herein filed a suit for declaration of easementary right and for mandatory injunction. The trial Court was pleased to dismiss the same. In the appeal filed by the plaintiff/appellant, the appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal. Challenging the same, the appellant has filed the above second appeal.
2. While the second appeal was admitted, this Court framed the substantial question of law, which is as follows:
“Whether the appellate Court is correct in not having considered the contents of Ex.A17 filed before it in the light of the observation made by this Court in its order in A.A.O.No.567 of 1984 dated 29.9.1986?
3. In elaboration of this substantial question of law, Mrs.Nalini Chidambaram, the learned senior counsel appearing for the plaintiff/appellant would vehemently contend that the lower appellate Court has committed a grave illegality in not granting the relief sought for in the suit having held that as per Ex.A17 the said pathway is a common pathway.
4. By way of reply, Mrs. Mala, the learned counsel appearing for the respondent would justify the reasonings given in the judgments rendered by both the Courts below.
5. I have carefully considered the submissions and scrutinised the records.
6. It is not in dispute that the appellant in his suit claimed the relief of declaration regarding the plaintiff’s right of easement over the ‘B’ schedule pathway and for mandatory injunction directing the respondent/defendant to remove the construction in the ‘B’ schedule.
7. It is the specific case of the plaintiff as mentioned in the plaint and as given in the deposition that the ‘B’ schedule property has been subjected to immemorial, continuous and uninterrupted user as a pathway by the plaintiff and his predecessors-in-title and as such, the plaintiff has prescribed a right of way over the ‘B’ schedule and consequently, the defendant has no right to cause any obstruction on the ‘B’ schedule property.
8. The trial Court on considering the oral and documentary evidence adduced by both concluded that the plaintiff’s right of easement of passage over the ‘B’ schedule property has not been established and as such, he cannot be entitled to the right of easement as well as the mandatory injunction by the judgment dated 17.1.1983 in O.S.No.309 of 1981.
9. Challenging this judgment, the plaintiff/appellant filed an appeal before the sub Court in A.S.No.16 of 1983. Pending appeal, he filed I.A.No.77 of 1984 for filing Adangal Extract to show that the ‘B’ schedule property is a pathway. The appellate Court though admitted the said document as additional evidence, ultimately allowed the appeal and remanded the matter to the trial Court for fresh trial in the light of the additional evidence being adduced.
10. Challenging the said order, Mani Chettiar, the defendant, the respondent herein filed an appeal before this Court in A.A.O.No.567 of 1984. This Court by the order dated 29.9.1986 set aside the order of remand and directed the appellate Court to consider the additional evidence and also give opportunity to the parties to adduce further