SUMATHIKUTTY Vs. BALAKRISHNAN

JUDGEMENT

(1.) THE following substantial questions of law are framed for a decision:

(2.) THE Second Appeal arises at the instance of the second plaintiff and the legal heirs of the deceased 1st plaintiff who instituted O.S. No.641 of 1997 in the Munsiff's Court, Mavelikkara praying for a decree for declaration of their right of easement by prescription over the plaint C schedule and for injunction against the respondents/defendants interfering with that right. The trial court granted a decree in favour of the plaintiffs holding that width of the plaint C schedule is 160 cms. In appeal at the instance of the defendants (A.S. No.32 of 2003), the learned First Additional District Judge found that plaintiffs have not averred in the plaint the date from which and upto which they used the plaint C schedule, that would disentitle the plaintiffs from getting a declaration as prayed for and consequently the first appellate court reversed the judgment and decree of the trial court.

(3.) DEFENDANTS 1 and 2 contended that the 1st defendant has no subsisting right over the plaint B schedule. 22 cents was assigned to the 2nd defendant and additional defendants 3 and 4 (in view of that contention they were impleaded). There was a common pathway from the Panchayath road on the western side and leading to the plaint A schedule and to the property of one Raghavan (situated further south of the plaint A, B and C schedules). That pathway was in existence through the southern extremity of the plaint B schedule at a width of two feet (from the plaint B schedule) and two feet from the northern extremity of the property of Raghavan. Thus the said pathway had a total width of four feet. Raghavan purchased one cent from his son, Raju and constructed a road. That road is being used for access to the plaint A schedule as well. According to the defendants the width of that way is 3.5 metres. After formation of that road, nobody is using the old four feet wide way. Additional defendants 3 and 4 also raised similar contentions and denied the right claimed by the plaintiffs.