RADHAMANI AMMA Vs. SARASWATHY AMMA

JUDGEMENT

(1.) THIS Second Appeal is drawn from the judgment and decree of learned Third Additional District Judge, Kollam in A.S. No.275 of 2010 granting a decree declaring right of easement claimed by the respondents and granting a decree for prohibitory injunction concerning the plaint D schedule, described as a way having width of one metre and length of about 100 metres. As per the averments in the plaint, the C schedule belongs to appellants 2 and 3 and that abuts the Panchayath road situated on the immediate east. On the west of the C schedule is the plaint A schedule belonging to respondents 1 to 3. On the further west is the plaint B schedule belonging to the 4th respondent. On the west of plaint B schedule, it is alleged, one Johnson owns and possess 34 cents. Plaint D schedule, according to the respondents is a one metre wide way originating from the Panchayath road on the eastern side, proceeding towards west along the northern portion of the plaint C schedule item No.2, the plaint B schedule and extending upto the 34 cents belonging to Johnson. Respondents claimed that themselves and the said Johnson have right of easement by prescription over the plaint D schedule since that way is in existence and in user from 1956 onwards. They further claimed that they have no other access to the plaint A and B schedules. Nor has Johnson any access to the 34 cents belonging to him. Alleging that appellants are attempting to interfere with D schedule way, respondents laid the suit and prayed reliefs as first above stated.

(2.) APPELLANTS denied existence of the way. They contended that respondents have other access to their respective items which they are using. They also claimed that when some of the owners of the property on the north of the plaint C schedule attempted to trespass into the C schedule, they filed O.S. No.312 of 2004 against those persons and obtained a decree. Appellants contended that respondents and others cut opened a new way through the northern side of the plaint C schedule. Thereon, first appellant filed E.P. No.162 of 2008 against the defendants in O.S. No.312 of 2004 and respondents 1, 2 and 4 for disobeyance of the decree in O.S.No.312 of 2004.

(3.) IT is contended by the learned counsel for the appellants that reversal of the judgment and decree of the trial court without stating cogent reasons is not correct. It is contended that there was no evidence before the first appellate court to hold in favour of existence of the plaint D schedule way as claimed by the respondents and at any rate, its alleged user for the statutory period. Learned counsel has placed reliance on the decision in Ibrahimkutty v. Abdul Rahuman Kunju (1992 [2] KLT 775) to contend that easement being a precarious right and a restriction on the proprietary right of the owner, has to be specifically pleaded and proved. No such plea or evidence is available in the case. It is also argued by the learned counsel that non -mention of northern boundary of respective items of plaint schedule as the disputed way in the relevant documents is by itself an indication that there was no such way. The learned counsel submitted that in proof of existence of and alleged user of way, none of the neighbours has also been examined by the respondents. In the circumstances the first appellate court could not have reversed judgment and decree of the trial court.