LALI Vs. RAJEENA

JUDGEMENT

(1.) This appeal has been directed against the judgment and decree in A.S.No.111/2014 on the file of Additional District Judge-II, Mavelikkara which in turn arise out of the judgment and decree in O.S.No.209/2008 on the file of Munsiff's Court, Haripad.

(2.) The suit has been filed for declaration and permanent prohibitory injunction. Defendant is the appellant (Parties would hereafter be referred as per their status before the trial court). Plaint Schedule item No.1 property was obtained by the plaintiff as per sale deed No.1425 dtd. 3/7/2007 and he is in absolute possession and enjoyment of plaint schedule property. Plaint item No.2 property having an extent of 3.65 Ares belongs to the defendant. Plaintiff and family is having ingress and egress through the northern side of the defendant's property . The said pathway is having a width of 5 metres and length of 17 meters and that way has been described as plaint item No.3 . Plaintiff acquired right of easement by grant over that way as per a consent letter executed by the defendant on 5/7/2007. At the time of purchase, item No.3 property was lying in a low level at about 2 ft and in pursuance of the agreement plaintiff elevated item No.3 property and transformed it into a road and erected a gate on the north eastern corner of his property and is using it as a private way. But the defendant is attempting to obstruct the right of use of the plaintiff over item No.3 way for which the defendant has no right at all. On the southern side of the plaintiff's property, there is a way having width of 1 metre leading to SC/ST settlement colony and the plaintiff has no intention to block the said way. Hence the suit has been filed for restraining the defendants and anybody under him from obstructing item No.3 way or causing any alteration to the same or doing any act to cause obstruction to the way. A declaration is also sought for declaring the plaintiff's right over item No.3 having a width of 5 metres and length of 15 metres.

(3.) Defendant filed written statement contending that on 27/11/2006, an agreement was executed in favour of the defendant's husband with respect to the entire property. Thereafter, the owner was not ready to give the property to the husband of the plaintiff. In that circumstances, the husband of the defendant intervened and persuaded the owner to sell item No.1 property to the plaintiff. There is a road on the western side of the defendant's property. Defendant purchased property paying more money than plaintiff. Then the owners of the property was not ready to give right of way. At that time, plaintiff and her husband threatened the defendant and got executed a document pressurising the defendant. Defendant had already given a pathway having a width of 1.80 meters in east west direction through the northern side of plaintiff's property for access to the plaintiff and to the persons residing on the eastern side of plaintiff's property. Boundary stones were also installed in the presence of Panchayat President. Harijan settlement colony is also situated on the south-eastern side of item No.1 property. An agreement was made for giving pathway of 1.5 metres from the east of plaint schedule property and through the property of the husband of the defendant. Suit has been filed suppressing all those factors. The plaintiff erected a gate at the north western corner of their property and filed the suit. Plaintiff has no right over the defendant's property. Defendant is ready to give a way having width of 1.80 meter. No pathway having a width of 5 metres was ever in existence through the property of the defendant. Plaintiff and defendant purchased the property on the same day. An agreement was arrived at regarding the way and accordingly way having width of 1.8 metres have been provided to the northern boundary. After that, the defendant permitted the plaintiff to carry the building material through the property. That will not confer any right on the plaintiff through the said property. Defendant constructed a building in her property at a distance of 3.5 meters south of the northern boundary of the defendant's property. Plaint item No.3 is not in existence. Defendant denied the execution of the alleged agreement on 5/7/2007. Plaintiff did not fill up any part of plaint item No.2 property. Pathway on the northern side of plaint item No.2 is being used by 8 families residing on the east. The defendant constructed a car porch at a distance of 3 meter south from the northern boundary of plaint item No.2 before seven months. The cause of action alleged is false.