JOHN Vs. P. JANAKI

JUDGEMENT

(1.) THE Second Appeal arises from the judgment and decree of learned District Judge, Kottayam in A.S.No.186 of 2004 reversing the dismissal of O.S.No.175 of 1999 by the learned Munsiff, Vaikom and granting a decree for prohibitory injunction in favour of the respondents/plaintiffs. Dispute concerns the right and user of plaint schedule item No. 2, described as a way starting from the PWD road on the south and leading to the house compound of the appellants. Item No. 1 is eight cents and the residential building therein. Item No. 1 is situated towards west of item No. 2 (and south of the house compound of the appellants). According to the respondents, they have acquired a right of easement by implied grant and quasi easement to pass through item No. 2 for access to item No. 1. It is the case of the respondents that of the eight cents referred to in the plaint schedule item No. 1, 4 = cents towards its north -western portion was acquired by the late husband of the 1st respondent on lease from Ramakrishnan Nair, the predecessor -in -interest of the appellants as well. The husband of the 1st respondent was given permission to them to use item No. 2 for access to the said 4 = cents since there was no other access to the said 4 = cents. The husband of the 1st respondent and others started residence in the house in the said 4 = cents. Later, the 1st respondent acquired 3.5 cents on the immediate east of the said 4 = cents as per Ext.A1, assignment deed No. 2961 of 1976 dated 07.07.1976 executed by the said Ramakrishnan Nair. Thus the respondents got absolute title and possession of the eight cents referred to in the plaint schedule item No. 1. They claimed that for their access to item No. 1 there is an opening from item No. 2 towards the south -eastern portion of item No. 1. They also claimed that right from the time the husband of the 1st respondent got lease hold right over the 4 = cents situated towards north -western portion of item No. 1, they were using item No. 2. They also claimed that since they have no other access to item No. 1, they have acquired a right over item No. 2 by way of quasi easements.

(2.) APPELLANTS contended that the respondents have no right over the plaint schedule item No. 2. They claimed that the plaint schedule item No. 2 belonged to them as per Ext.A2, assignment deed dated 06.07.1976 executed by Ramakrishnan Nair in favour of the 2nd appellant. It is further contended that on 08.02.1990 by Ext.B2, the 2nd appellant obtained permission from the local authority for construction of a compound wall at the southern extremity of plaint schedule item No. 2, abutting the PWD road. Item No. 2 is the private road exclusively belonging to the appellants. Access to the plaint schedule item No. 1 is through the south -western portion of property acquired by the 6th respondent as per Ext.A3.

(3.) THE respondents challenged that judgment and decree in the District Court. The first appellate court referring to the documentary and oral evidence concluded that the plaint schedule item No. 2 was in use by the respondents even at the time of Ext. A1. The first appellate court held that at the time the husband of the 1st respondent obtained lease hold right over the 4 = cents being the north -western portion of item No. 1, there was no access to the said property except through item No. 2 and hence the case of the respondents that Ramakrishnan Nair had granted permission to the husband of the 1st respondent to use plaint schedule item No. 2 for access to the said 4 = cents is probable. The first appellate court also held that since at the time of Ext.A1 there was a formed way (item No. 2) the claim of respondents for quasi easement would stand. A decree was granted in favour of the respondents. The decree of the first appellate court declares right of the respondents over plaint schedule item No. 2. It directs the appellants by way of mandatory injunction to remove the obstruction caused to item No. 2, pathway and also to open the gate for the convenient use of the pathway by the respondents. That judgment and decree are under challenge.