RAGHAVAN Vs. FRANCIS JOSEPH S/O FRANCIS

JUDGEMENT

(1.) SECOND defendant in O.S.No.1462 of 2003 of the Additional Munsiff's Court, Ernakulam is aggrieved by the judgment and decree of learned I Additional District Judge, Ernakulam in A.S.No.145 of 2009 granting prohibitory injunction against him and others trespassing into the plaint B schedule, in reversal of the judgment and decree of the trial court.

(2.) FIRST respondent/plaintiff claimed that he obtained plaint A schedule situated on the west of the panchayath road and plaint B schedule on the east of that road as per Will Nos.5/69 and 2/64. He contended that defendants are residing on the east of plaint B schedule. According to the plaintiff, there is 45 cents on the north-east of plaint B schedule in the joint ownership and possession of first defendant and his brothers, there was a partition among them in which a pathway was provided for access from the panchayath road to the said 45 cents. It is the further case of plaintiff that defendants closed that pathway and attempted to pass through plaint B schedule for access to the panchayath road. Defendants constructed steps abutting plaint B schedule. Hence the suit for mandatory and prohibitory injunction.

(3.) PLAINTIFF took up the matter in appeal. First appellate court took a different view of the matter. It held that no plea of easement by way of necessity could be raised by the defendants since there is no plea or evidence of severance of tenements between plaint B schedule and the property of defendants. It also held that the plea of prescriptive easement is not established. belonging to them. First appellate court observed that plaint B schedule is only 9 cents and that it is not likely that a way would be allowed through such small plot. First appellate court was of the view that it is usual for the people to walk through unenclosed land as a shortcut and that would not confer any right on anybody. Consequently first appellate court allowed the appeal in part, reversed the judgment and decree of the trial court and decreed the suit in part granting prohibitory injunction against defendants trespassing into plaint B schedule. That judgment and decree of the first appellate court are under challenge in this second appeal.