PREMALATHA Vs. CHAMBAYIL PRAVEESH KUMAR

JUDGEMENT

(1.) THE legal representatives of the deceased plaintiff in O.S.No.164 of 2004 of the II Additional Munsiff's Court, Kozhikode are aggrieved by the dismissal of that suit as confirmed by the II Additional Sub Court, Kozhikode in A.S.No.60 of 2009.

(2.) THE appellants claimed that the suit property and other items belonged to Krishnan, the late father of the deceased plaintiff and the respondent/defendant. While so, as per Ext.A1, partition deed No.4893 of 1978, the suit property was allotted to the deceased plaintiff as item No.1 of A schedule of that partition deed. The deceased plaintiff sold six cents. The remaining property - 1.09 acres is the property scheduled in the plaint. The property on the south belonged to the respondent/defendant as item No.5 of F schedule of Ext.A1, partition deed. The respondent has access to his property from the east and south. The respondent attempted to form a new pathway through the suit property. Hence the suit.

(3.) THE trial court found that the plea of easement by necessity and prescription is not established but, found that the deceased plaintiff filed the suit after interfering with the existing way and having come to the court with unclean hands is not entitled to the discretionary relief of injunction. Consequently the suit was dismissed. That decision was confirmed by the first appellate court.