IBRAHIMKUTTY KOYAKUTTY Vs. ABDUL RAHUMANKUNJU IBRAHIMKUTTY

JUDGEMENT

(1.) The second defendant in O.S.No.321 of 1979, Munsiff's Court, Karunagappally is the appellant in this appeal. Plaintiffs 1 to 5 and the third defendant in the suit are the respondents herein. The first defendant's rights have been sold to the second defendant The suit was filed for declaration of an casement right over C Schedule property which is a pathway 4 1/2 feet wide through the eastern extremity of B Schedule properly. The plaint A schedule property belongs to plaintiffs 1 to 5 and the third defendant and they arc owners of different plots in A Schedule property. B schedule property which belongs to defendants 1 and 2 lies to the south of A schedule. To the south of B schedule, there is a public rood The plaintiffs stated that from A schedule property for access to the public road there is a pathway through the eastern extremity of B schedule property having a width of 4 1/2 feet which is described in the plaint as C schedule. The said pathway is so being used for more than 100 years. The defendants arc trying to obstruct the use of the C schedule as a pathway. The plaintiffs claimed an casement right over the C schedule pathway. The suit is filed for declaration of the easement right and for a permanent injunction restraining defendants l and 2 from interfering wit h the plaintiffs' use of the C schedule as a pathway.

(2.) Defendants 1 and 2 denied the claim of title by the plaintiffs and the 3rd defendant over the A schedule property. They denied that there was a pathway as mentioned in the C schedule. The casement right claimed by the plaintiffs was also denied. It was pleaded that C schedule is not a pathway; but it is only a bund constructed by the second defendant to prevent water from the eastern Thodu entering into the B schedule property, which is a paddy field. It was also pleaded that the plaintiffs have an alternate pathway. The Trial Court held that the plaintiffs have an easement right of way by necessity and by prescription. The suit was decreed on 10-8-1981. The injunction prayed for was allowed. It was declared that the plaintiffs have a right of easement of way along the C schedule 'nadavarambu' over the plaint B schedule property, since the easement right has arisen out of necessity and by prescription.

(3.) Defendants 1 and 2 filed an appeal before the District Court, Kollam as A.S.No.140 of 1985. By judgment dated 22-1-1986, the learned District judge held that the plaintiffs have a customary easement and also an easement by prescription which am be inferred. In this view, the appeal filed by the defendants was dismissed. The second defendant has come up in second appeal.