YOHANNAN Vs. MATHAI

JUDGEMENT

(1.) In both the second appeals, same person is the appellant. He is plaintiff in O. S. No. 263 of 1980 and defendant in O. S. No. 282 of 1980 on the file of the Munsiff, Pathanamthitta. Defendants in O. S. No. 263 of 1980 are plaintiffs in O. S. No. 282 of 1980. These two suits were tried together and evidence was recorded in O. S. No. 263 of 1980. They were disposed of by a common judgment decreeing 0. S. No. 263 of 1980 and dismissing O. S. No. 282 of 1980. I will be referring to the parties as plaintiff and defendants in relation to O. S. No. 263 of 1980. Defendants filed A.S. No. 28 of 1983 against the decree in O. S. No. 263 of 1980 and A. S. No. 29 of 1983 against the dismissal of O. S. No. 282 of 1980. Both the appeals were allowed. O. S. No. 263 of 1980 was dismissed and O. S. No. 282 of 1980 was decreed. Both the second appeals were filed by the plaintiff. S. A. No. 260 of 1986 is against the appellate decision in A. S. No. 28 of 1983 dismissing O. S. No. 263 of 1980 and S. A. No. 262 of 1986 is against the decree in O. S. No. 282 of 1980 passed in A.S. No. 29 of 1983.

(2.) In both the suits, Item No. 1 are adjacent lands admittedly belonging to the respective plaintiffs. Item No. 1 in O. S. No. 263 of 1980 is on the northern side and Item No, 1 in O. S. No. 282 of 1980 is lying immediately to the south of it. On the western side of Item No. 1 in O. S. No. 282 of 1980, the property of PW 3 Mathai lies. Item No. 2 in O. S. No. 263 of 1980 is a strip of land 7 x 120 ft. on the eastern side of the property of PW 3, which touches the southern road lying immediately to the south of Item No. 1 in O. S. No. 282 of 1980 and the property of PW 3. Item No. 2 is claimed by the plaintiff to be a pathway, over which he claims easement right. It was for declaration of that right and injunction that he filed O. S. No. 263 of 1980 on the allegation that the defendants attempted to destroy the pathway. Item No. 2 in O. S. No. 282 of 1980 is 5 x 120 ft. of land out of Item No. 2 in O. S. No. 263 of 1980, which the defendants claimed to be part of their property, which is Item No. 1 in O. S. No. 282 of 1980. It was for declaration of their title over Item No. 2 and for putting up a boundary wall on the west of it that they filed O. S. No. 282 of 1980. Their case is that in between their property and that of PW 3, there is a narrow strip of land, 2 ft. wide, and it was never a pathway. Thus the real dispute between the parties is the ownership and possession of the defendants over Item No. 2 in O. S. No. 282 and the question whether Item No. 2 in O. S. No. 263 of 1980 is a pathway over which the plaintiffs acquired easement right.

(3.) It is the common case of the parties that the western boundary of the property of the defendants was destroyed shortly before the suit and the portion alleged to be lying as pathway was meddled with by putting new earth. Case of the plaintiff is that it was done by the defendants in an attempt to enclose Item No.2 in O.S. No. 282 of 1980 as part of their land by putting up a new stone wall on the west of the pathway. But the defendants say that their western boundary wall was destroyed by the plaintiff to convert 5 ft. width of their land into a pathway. '.