BHASKARAN Vs. SHOBHA

JUDGEMENT

(1.) Plaintiff in a suit for injunction is the Appellant. A decree as canvassed by the Plaintiff in his suit was granted by the trial court. But, in appeal preferred by the Defendants, the decree of the trial court was reversed and the Plaintiff was non-suited. Aggrieved by the decision so rendered by the lower appellate court, the Plaintiff has preferred this appeal.

(2.) Plaint schedule properties, two items, are purchased by the Plaintiff and his brother respectively under Exts. A-1 and A-2 sale deeds. Admittedly, both these properties are lying contiguously as a single plot Prior to the purchase of the above land under Exts. A-1 and A-2 by the Plaintiff and his brother, the Defendants have obtained right, title and possession over the properties situate to the east of both the above items and also to the west of plaint item No. 2. Plaintiff laid the suit for a decree of perpetual prohibitory injunction against the Defendants alleging threat of trespass from them over a portion of plaint item No. 2 property over its southern side to cut open a pathway for having a direct access from their property on the eastern side of the plaint items to their property situate on the western side of item No. 2. A decree for perpetual prohibitory injunction was, therefore, applied for against the Defendants to restrain them from trespassing upon or cutting open any pathway through the plaint property.

(3.) The Defendants resisted the suit contending that previously a pathway was in existence on the northern side of plaint item No. 1 property and that was surrendered by them to the Plaintiffs on the basis of an agreement (Ext. B-4) entered with the brother of the Plaintiff by which a new way was provided through the southern side of plaint item No. 2 property to the Defendants for having access from their eastern property to the west of item No. 2. It was the further case of the Defendants that, previously, the properties covered by Exts. A-1 and A-2 sale deeds conveyed to the Plaintiffs and that of the Defendants situate to the east of the plaint properties and west of item No. 2 property, and also the northern property of the plaint properties belonged to common title holders, Kizhakkethil Karappan and Narayanan, from whom, both, the Plaintiff and his brother, and the Defendants, purchased their respective properties. When the Plaintiff purchased the properties to the north of the plaint property, a demand for surrender of the existing pathway was made to have enjoyment of items 1 and 2 properties as a compact plot and, thereupon, on the basis of the mutual agreement, as reflected in Ext. B-4 document, surrender of the existing pathway was made on providing an alternate way through the southern portion of item No. 2 property, according to the Defendants.