SATHYAVATHI K N Vs. SAROJINI

JUDGEMENT

(1.) Defendants in OS 935/1997 on the file of Munsiff Court - II, Kozhikode are the appellants. Respondent is the plaintiff. Respondent instituted the suit for decree for permanent prohibitory injunction restraining the appellants from interfering with his peaceful enjoyment of plaint B schedule property. Plaint B schedule property is a way starting from the way leading to Naithukulam T. V. Kumaran Nair road and proceeds towards the east and reaches the plaint A schedule property belonging to the respondent. It was contended that plaint A schedule property originally belonged to Unichirakutty alias Kuttiamalu, mother - in - law of the respondent by virtue of document No. 1170/1947 of SRO, Chevayoor and item No. 3 therein was set apart to the share of the respondent and her children. Respondent has been in possession of plaint A schedule property. The only access to plaint A schedule property is plaint B schedule way. It was contended that respondent and his predecessors have been using plaint B schedule way for the ingress and egress to plaint A schedule property continuously for more than 50 years openly, uninterruptedly as of right and as an easement and therefore, she has prescribed a right of way by easement of prescription. Contending that plaint B schedule way passes through the property of the appellant and they are causing obstruction to the way, a decree for injunction was sought for. Appellants resisted the suit admitting that plaint A schedule property originally belonged to Unichirakutty alias Kuttiamalu who obtained the property from Velukutty and Velukutty obtained property from tharawad of the appellants and the property situated on the western side of the plaint A schedule property is in the possession of the appellant and under Ext. B3 partition deed entered into between the members of the tharawad of the appellants, property situated just on the west of the plaint A schedule property was exclusively allowed to the share of the appellants and even though the property was a paddy field earlier, it was converted into a garden land by planting coconut trees and areca tress and there is no foot path starting from Thandayad - Kovoor road towards south as alleged in the plaint and it is a private road having a width of 8 feet which is going to tharawad house of the appellants and respondent has no right of way through the plaint B schedule property and she or her predecessors have not been using the plaint B schedule way and therefore, she is not entitled to a decree sought for.

(2.) Learned Munsiff on the evidence of PW 1, DW 1, Exts. A1 to A5, B1 to B4 and C1 to C6 found that the reports and plans submitted by the Commissioner with the evidence establish that plaint B schedule way starts from plaint A schedule property belonging to the respondent and lies to the east of the property of the appellants and the way proceeds towards west and reaches a road which joins Thandayad - Kovoor road which runs east - west through the north of the properties. Learned Munsiff also found that plaint B schedule way was being used by the appellants and her predecessors for more than 20 years continuously without interruption openly and peaceably as of right and as an easement and granted a decree restraining the appellants from interfering with the peaceful enjoyment of the plaint B schedule way. Appellants challenged the decree and judgment before Sub Court, Kozhikode in AS 167/2001. Learned Sub Judge on re - appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

(3.) Second appeal was admitted formulating the following substantial question of law.