FRANCIS ALIAS PORINCHUNNY Vs. TEEMOL

JUDGEMENT

(1.) THE following are the substantial questions of law framed for a decision in this second appeal drawn from the judgment and decree of the Munsiff's Court, Chalakudy in O.S. No. 80 of 2003, confirmed by the Sub Court, Irinjalakuda in A.S. No. 193 of 2006:

(2.) THE appellant/plaintiff claimed title and possession of the plaint A schedule as per Will No. 6/1954. Property of the respondents is situate on the west of the plaint A schedule. It is alleged that the plaint A schedule and the property of the respondents were originally paddy fields reclaimed about 30 years before institution of the suit. Plaint B schedule is described as a way having width of 5 feet, originating from the Asramam road on the west, passing through the property of the respondents and reaching the plaint A schedule. It is claimed that the plaint B schedule is the only access to the plaint A schedule. The appellant has also a contention that plaint A schedule and the property of the respondents originally belonged to one Chummar at one point of time (however, what was projected in the plaint is a claim of easement by prescription). The appellant wanted declaration of that right and prohibitory and mandatory injunction.

(3.) THE trial court found from the evidence of PW.1 and Ext.C1, report of the Advocate Commissioner that the disputed plaint B schedule has a width of one foot. However, the claim of easement by prescription was negatived and consequently the suit was dismissed. That finding was confirmed by the first appellate court. Hence the second appeal.