ANNIE STEPHEN Vs. MATHEW JOSEPH

JUDGEMENT

(1.) DEFENDANTS are the appellants. They challenge the concurrent finding regarding the plaintiff's right to use item No.2 road.

(2.) THE plaintiff filed the suit for declaration of the right of easement by grant for ingress and egress to the plaint schedule property through item No.2. A further declaration that the plaintiff is entitled to an easement of necessity through the said property and also for a prohibitory injunction restraining the defendants from obstructing the plaintiff's enjoyment of the right of easement and a further prayer for mandatory injunction directing the defendants to remove the obstructions caused by the construction at the eastern boundary of the plaint schedule item No.1 and for the removal of the gate fixed on the northern end of item No.2 in order to facilitate the plaintiff's user of the way, were also sought for. The fact that item No.1 of the plaint schedule property was purchased by the plaintiff is not disputed. It is also not disputed that item No.3 belongs to the 1st defendant. The further fact that item No.2 was purchased by the 1st defendant is also not disputed. Item No.2 measuring 8 cents was purchased by the 1st defendant for the purpose of constructing a road for ingress and egress to item No.3.

(3.) BEFORE the court below, PWs 1 to 3 were examined and Exhibits A1 to A10 were marked. DW1 and DW2 were examined and Exhibits B1 to B9 were marked. The Commissioner's report and sketch were marked as Exhibits C1 and C1(a). The trial court, after analysing the evidence adduced by the parties, a declaration was granted to the effect that the plaintiff was having right of way by easement by grant over item no.2 property covered by Ext.A3. A decree for mandatory injunction was also granted to remove the compound wall constructed on the eastern side of plaint item No.1 and also to remove the gate fixed on the northern side of plaint item no.2. A prohibitory injunction was also granted restraining the defendants from plaintiff's user of item no.2 road as access to plaint item No.1.