V.V.PATHROSE Vs. V.V.XAVIER

JUDGEMENT

(1.) THESE second appeals arise from the common judgment and decree of the III Additional District Court, Ernakulam in A.S.Nos.253 of 2006 and 265 of of 2006 which in turn arose from the common judgment and decree of the III Additional Munsiff's Court, Ernakulam in O.S.Nos.1134 of 2000 and 242 of 1994, respectively and the counter claim in O.S.No.242 of 1994.

(2.) THE original plaintiff sued the defendants 1 and 2, his brothers and defendants 3 and 4, children of a pre-deceased brother in O.S.No.242 of 1994 for a decree for prohibitory injunction and for fixation of boundary and injunction in O.S.No.1134 of 2000. According to the plaintiff, the plaint A schedule is 9.100 cents belonging to the plaintiff as per will No.15 of 1967 (Ext.A1 is the copy of letter of administration with copy of Will) executed by the father who died on 25.05.1971. Plaint B schedule is described as a common pathway provided as per the Will. On the north of the plaint A schedule there is a pathway leading to the main road from the common pathway. On the north of that pathway is the property of defendants 1, 3 and 4. The defendants tried to annex the plaint B schedule way to their property. Hence the suit for injunction against trespass into the plaint A schedule and causing obstruction to the plaintiffs using the plaint B schedule.

(3.) THE defendants resisted the suit and raised a counter claim in O.S.No.242 of 1994. They claimed that as per the Will the common pathway starts from the public road on the western side and passed in between the two items set apart to the plaintiff. The plaintiff has shown the plaint A schedule as if it is a single, compact plot. In fact it is in two blocks as per the Will. The attempt of the plaintiff is to enclose the common pathway provided as per Ext.A1 in between the two items allotted to him. The plaintiff has closed that pathway. The description of plaint B schedule is wrong. In the counter claim the defendants prayed for a decree for mandatory injunction to restore the common pathway as per the Will.