(1.) Defendants 2, 3 and 7 in O.S.114 of 1987 on the file of Munsiff Court, Vaikom are the appellants. Respondents are the plaintiffs and the other defendants in the suit. Respondents 1 to 8 instituted the suit claiming a decree for declaration of the right of easement over plaint schedule No.5 pathway and for a permanent prohibitory injunction restraining the defendants by a permanent prohibitory injunction from causing alteration to the said pathway or obstruct the plaintiffs from using that way. They contended that item No.1 of the plaint schedule property originally belonged to deceased Karunakaran, father of respondents 1 to 7 and husband of 8th respondent and on his death, under his will, respondents 1 to 8 are the owners in possession of item No.1 of the plaint schedule property. Before the death of Karunakaran, a house was built in the property and Karunakaran was living there along with the family and subsequent to his death, respondents 1 to 8 are continuing the residence and on the eastern side of the plaint schedule property is the property belonging to the family of first defendant and appellants 1 and 2 (defendants 2 and 3) constructed separate houses therein and as they are entitled to kudikidappu right under the first defendant, first defendant had given item No.2 of the property to the second defendant, item No.3 to third defendant and item No.4 of plaint schedule property is the property belonging to first defendant and forms part of plaint schedule item No.5, which is the pathway and first defendant had recognized the right of easement by prescription over item No.5 of the plaint schedule property and item No.6 of the plaint schedule property is the property of 3rd appellant ( 7th defendant) a subsequent transferee from the first defendant. Defendants 4 to 6 are the children of the first defendant. It is contended that the Kochangadi Mekkara road is 150 feet to the south of item No.1 of the plaint schedule property and that road reaches Vaikom-Ernakulam road on the east and the predecessors in interest of respondents 1 to 8 and thereafter respondents 1 to 8 have been using item No.5 of the plaint schedule way as of right and as an easement, openly peaceably and without interruption and therefore they have prescribed a right of way by easement of prescription and defendants are not entitled to cause any obstruction to the way or to make any alteration. They also contended that item No.5 is the only way available to item No.1 of the plaint schedule property and therefore they have a right of easement by necessity also. Only the appellants resisted the suit and defendants 1 and 4 to 6 remained absent and were set ex parte.
(2.) Appellants 1 and 2 filed a joint written statement which was adopted by the third appellant. They contended that the description of the plaint schedule property is not correct and the extent of the properties of defendants are not shown correctly and third defendant had obtained 32 cents of land from the first defendant and her children and he is now in possession of 22 cents. The second defendant obtained kudikidappu right over four cents of land and first defendant and her children recognized the kudikidappu right of third defendant and property was assigned to him by first defendant and her children and they together are in possession of four cents of land. The western side of the property is on a higher level and they are intending to construct a house in the property and item No.4 of the plaint schedule property belongs to first defendant and it is denied that it was given as a way to the plaintiffs. It is contended that the description of item No.5 is not correct and before the Kochangadi Mekkara road came into existence, there was only a pathway in that place and that was not convenient for plying vehicles and the road gained the present position only 14 years back and before that there was only a way having a width of four feet and by putting earth in that place, it was made convenient to take vehicles 7 years back and plaintiffs are not entitled to a right of way over item No.5 of the plaint schedule property as claimed and they are not entitled to the decree sought for. It is also contended that the suit was instituted in collusion with the other defendants and even though defendants have no objection for using a narrow strip of land as a pathway to reach item No.1 of the plaint schedule property, they are not entitled to a right of way over item No.5 of the plaint schedule property.
(3.) Learned Munsiff originally decreed the suit as prayed for. It was challenged before Sub Court, Kottayam in A.S.120 of 1994. Before the first appellate court, the plaintiffs/respondents filed an application to amend the plaint incorporating the necessary ingredients of a right of easement by prescription. Learned Sub Judge allowed the appeal and remanded the suit for fresh disposal after giving an opportunity to the defendants to file an additional written statement and allowing the parties to adduce further evidence, directing the trial court to permit the plaintiffs to amend the plaint. The plaint was thereafter amended incorporating the ingredients of a right of easement by prescription. An additional written statement was also filed. No further evidence was adduced. Learned Munsiff, by judgment dated 30.6.1999, granted a decree declaring the right of easement by prescription over item No.5 of the plaint schedule pathway and restrained the defendants from causing any alteration or obstruction to the pathway. Ext.C1(a) plan submitted by the Commissioner was made part of the decree. Appellant challenged the judgment before Additional District Court, Kottayam in A.S.217 of 1999. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.