VASUDEVA PRABHU Vs. MADHAVA PRABHU

JUDGEMENT

(1.) This Second Appeal arises from a suit for mandatory injunction. The plaintiffs 1, 2, 4 and 5 are the appellants. Fifth respondent in the appeal is third plaintiff. The respondents 1 to 4 are the defendants. The trial Court granted a decree directing the defendants "to dismantle and remove closed portions of two gates in the compound walls and restore B schedule pathway to its original position". In the appeal by the defendants, the above decree was reversed and suit was accordingly dismissed. Hence this second appeal.

(2.) The facts are summarised briefly thus : One Kesava Prabhu had executed a Will (Ext.A1) in the year 1122 M.E. bequeathing his properties to his three sons and others. Ext.A1 deals with the properties set apart in different schedules. The schedules B, C and D are alone relevant in this case. Item No. 1 in B schedule was allotted to Rama Prabhu, father of defendants 1 and 2. Item No. 1 in B schedule was allotted to Guna Prabhu. Item No. 1 in D schedule was allotted to Vasudeva Prabhu (first plaintiff). Three street houses and their site measuring 18 cents are the properties allotted to these three sharers. There is a public road on the northern side of B schedule item No. 1. On the rear of three houses, there is a plot of land, 65 feet long and 11/2 koles wide used as a pathway leading to the road. In Ext.A1 Will, the testator had reserved this pathway for the use of all sharers as common property. This pathway was there mainly for the purpose of scavenging and for other purposes in relation to the convenient enjoyment of D schedule item No. 1. After the death of testator, the properties as per Schedules B, C and D were devolved on the sharers subject to the reservation relating to pathway. The plaintiffs had been using the pathway without any obstruction from others. The allegation of the plaintiffs was that in the first week of December, 1981 the defendants had removed two gates in the boundary walls and closed the pathway and thus they were prevented from using it for the enjoyment of their properties. It was under that situation the present suit was filed. The first item of D schedule to the Will is the plaint A schedule property. The plaint B schedule is the pathway reserved for common use.

(3.) The suit claim was resisted by the defendants contending that the use of the pathway was unnecessary inasmuch as plaintiffs and other sharers were having road frontage to their properties. It was further claimed that the bucket-type of latrines having been discontinued, the right reserved in Ext.A1 Will for the use of pathway had been extinguished. According to them, the pathway was meant for scavenging alone. However, the defendants did not deny the removal of gates and closure of pathway but according to them it was done not during the period as alleged by the plaintiffs.