N SOMAN Vs. SIVARAJAN

JUDGEMENT

(1.) PLAINTIFFS are the appellants. Suit was one for injunction. Suit was dismissed by the trial court, which was confirmed in appeal by the lower appellate court. Impeaching the concurrent decision rendered non-suiting them, and, feeling aggrieved, the plaintiffs have preferred this appeal.

(2.) THE dispute involved in the suit essentially related to a pathway described as 'E' schedule, which, according to the plaintiffs formed part of a portion of another pathway described as 'B' schedule. THE plaintiffs have got title and possession over 'C' schedule, and the defendants 'D' schedule properties described in the suit, was their case. THE above 'C' and 'D' schedule properties were portions of 1 acre 68 cents, which formed part of a larger extent of 2 acre and 43 cents involved in a partition effected by the members of a joint family. After such division, when further partition of the 1 acre 68 cents of property was made, a pathway having an extent of 6 cents of land was set apart as a pathway for convenient enjoyment of the plots allotted to the sharers. Later, by exchange between the members of the thavazhy, who had right over the 6 cents of the aforesaid pathway, one half portion of that pathway was exchanged by them in lieu of surrender of 1.5 cents of land from the holdings of another set of persons, namely, one Krishnan Nair and his wife, to form a pathway. THE land so surrendered by the aforesaid Krishnan Nair and his wife is described by the plaintiffs as 'B' schedule. A portion of 'B' schedule pathway, according to the plaintiffs, lies to the north of 'D' schedule, and it is enjoyed by the plaintiffs as a right of easement. That portion of pathway is described as 'E' schedule. Attempts by the defendants to annex that pathway, which formed part of 'B' schedule, but, separately described as 'E' schedule, putting up constructions, is the basis of the suit for seeking a decree of permanent prohibitory injunction to restrain the defendants from reducing the 'E' schedule pathway portions, putting up compound wall on the north of 'B' schedule and from doing anything which will destroy the plaintiffs' right of easement over 'E' schedule.

(3.) I heard the learned counsel for the appellants/plaintiffs. The main thrust of attack levelled against the judgments of the courts below by the learned counsel is that when the commissioner failed to identify 'E' schedule pathway in respect of which decree of injunction was applied for, his report should have been remitted, if necessary, issuing specific directions for locating the pathway with reference to the documents and also the boundaries. Both the courts failed to note that fixing the location of 'E' schedule pathway by remitting the report and calling for a fresh report was warranted in the case, but, blindly accepting the report of the commissioner, and, his failure to locate and identify the pathway, according to the counsel, the plaintiffs were non-suited. Relying on "Kallil Thiruvalil Abdulla Haji v Earayintavide Anneri Krishnan" (2007(2) KHC 777), the learned counsel contended that the dismissal of the suit without considering the question of identification of property was not just and proper.