AMMUKUTTY AMMAL Vs. DEVAKI AMMA

JUDGEMENT

(1.) Plaintiffs in O.S. No. 23/2002 on the file of Munsiff Court, Ottapalam are the Appellants. Defendants are the Respondents. Appellants instituted the suit seeking a decree for a permanent prohibitory injunction in respect of Plaint B schedule property. Plaint A schedule property admittedly belongs to the Appellants under Ext.A1 partition deed. Plaint B schedule property is alleged to be the way having a width of 5 feet and a length of 48 feet starting from the southern road and reaching the plaint A schedule property on the north, and lies in between C schedule property allotted to deceased Krishnan and the D schedule property allotted to Balaguptan under Ext.A1. Respondents are the wife and son of Krishnan to whom C schedule property was allotted. Appellants are claiming a right of way over plaint B schedule property alleging that it is the way available to the plaint A schedule property which was in existence before the partition and continued to be used by the Appellants subsequent to the partition. Appellants are claiming a right of way by easement of prescription over the plaint B schedule property contending that plaint B schedule property was set apart as a way to plaint A schedule property and they have been using it openly, peaceably, continuously and without interruption since then as of right and as an easement. Respondents resisted the suit contending that plaint B schedule property does not exists and no way was provided to the A schedule property on the west of the property C schedule property allotted to Krishna and to the east of D schedule under Ext.A1 partition deed and Appellants are not having any right over the way over the plaint B schedule property.

(2.) Learned Munsiff on the evidence of PWs.1 and 2, DW1, Exts.A1 and A2, B1, and C1 to C2(d) dismissed the suit holding that Appellants did not establish any right of way through the plaint B schedule property. Appellants challenged the judgment before Sub Court, Ottappalam in A.S. 91/2004. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

(3.) When the appeal was heard finding that as the Appellants and Respondents are relatives and it would be advantageous to the parties to have an amicable settlement, the case was sent to the Permanent Lok Adalat for settlement, if possible. The records were sent back by the Lok Adalat stating that parties did not appear and their counsel submitted that there is no possibility of settlement.