JOY JOSEPH Vs. JOSE JACOB ALIAS THANKACHAN

JUDGEMENT

(1.) The defendants in Original Suit 243/1987, who had got a decree in their favour from the Trial Court, but found themselves deprived of the benefits of the decree by the lower Appellate Court are the appellants. The parties and facts are hereinafter referred to as they are available before the Trial Court.

(2.) The plaintiff claimed to have obtained plaint A schedule property as per Ext. A1 sale deed dated 27/08/1974. A portion of the property having a width of 5 links and an extent of 2 cents comprised in 24 cents of property also belongs to the plaintiff. First defendant purchased property on the northern side of the plaintiff's property. He has a means of access from his property to the road lying on the northern side of the plaint schedule property through the adjacent property on the eastern side. He also purchased a property lying adjacent to his property on the western side having a width of 3 links from the side of M.C. Road towards east and then at a width of 5 links towards north upto his property for pathway and the first defendant has been using that portion of the property as a way for his ingress and egress to his property from the M.C. Road. He has no need to use the 5 links width pathway having an extent of 2 cents to gain access to the outside world. Defendants 2 and 3 are residing on the western side of the plaint schedule property and there is a boundary wall demarcating the property of the first defendant. It is found that a portion of the plaint schedule property has been trespassed upon by the defendants and enclosed within their compound wall. Under these circumstances, it became necessary to institute suit for declaration, recovery of possession and for permanent prohibitory injunction etc.

(3.) In the written statement filed by the first defendant, he contended that item No. 2 in the written statement having a width of 5 links is lying on the western side of the plaintiff's property in north - south direction and it leads from the M.C. Road to the property shown as item No. 1 in the written statement. He claimed right of easement by necessity and prescription over that way. It is pointed out that the plaintiffs tried to dispute the use of the way, police was informed and the plaintiffs had to remove the obstruction. A counter claim was also received by the first defendant for declaration of right of way 'over the portion of way lying on the western side of plaint schedule property described as item No. 2 in the written statement.