SELINE Vs. MARY VARGHESE AND ANOTHER

JUDGEMENT

(1.) THE plaintiff in O.S. No. 903 of 2010 on the file of the Principal Munsiff Court, Ernakulam is before this Court challenging Ext. P -7 order passed on I.A. No. 2075 of 2011 in the said suit. The petitioner carries the suit for a declaration that she has an indefeasible right of way over plaint 'B' schedule pathway by easement of necessity and also for consequential injunction. The case of the petitioner is that she is in possession and enjoyment of plaint 'A' schedule property having an extent of 4. 11 acres comprised in resurvey No. 125/20 in block No. III (old survey No. 225/1) in Mulavukadu Village on the strength of Ext. P -1 sale deed executed by the first respondent. The second respondent, who is the husband of the first respondent, was having 20.164 cents of property in the same survey number by virtue of a settlement deed of 1979. In the year 1982, the second respondent settled 4.11 acres out of the aforesaid 20.164 cents in favour of the first respondent, who in turn, conveyed the same to the petitioner as per Ext. P -1.

(2.) THE petitioner further alleges that at the time of execution of Ext. P -1 sale deed in her name with respect to plaint 'A' schedule property, a pathway was provided by the respondents through the remaining property of the second respondent starting from plaint 'A' schedule property and leading to the Panchayat road for ingress and egress, which is the only means of access to plaint 'A' schedule property. The northern boundary of the aforesaid 4.11 acres was, therefore, shown as 'vazhi' (pathway) in Ext. P -1 sale deed. The said pathway is described as 'B' schedule property in the plaint.

(3.) ON the basis of the rival contentions, the court below framed issues; issue No. 1 being: