PAILY Vs. DEVASSY

JUDGEMENT

(1.) Plaintiff is the appellant. His suit for injunction was dismissed by the Trial Court. The counter-claim filed by the defendants was decreed. The appeal filed by the plaintiff was dismissed. There was a family settlement evidenced by Ext. B1 entered into between the parties to the suit and other parties. Ext. C4(a) is the plan relied upon by both sides. Plot No. 1 is the plaint A Schedule property. Plot No. 2 in Ext. C4(a) is the plaint B Schedule property. Plaint C Schedule takes in Plots 4 and 6 shown in Ext. C4(a). Item No. 7 belongs to the defendant. As per the terms of Ext. B1 the defendant was to get only a right of way from the road. It is contended that Ext. C4(a) will go to show that the plaintiff had surrendered 54.9 Sq. metre land for the formation of the pathway in favour of D4 and D5. Instead the plaintiff obtained 35.7 Sq. metre of land for widening the C Schedule pathway. The fact that the pathway having a width of 10 feet was formed taking in Plot Nos. 4 and 6, is not disputed. But the core of the issue is whether the plaintiff is having absolute right over the said pathway and whether the plaintiff is entitled to put up a compound wall on either side of the pathway preventing the defendants from using the same, having direct access to the 'C Schedule road/pathway from their respective plots, Plot Nos. 7, 3 and 10.

(2.) It is submitted by the learned counsel for the appellant that a gap of one metre was provided on either side of the compound wall so as to enable the person in possession of Plot No. 10 to enter into the C Schedule and then to enter into the item which is on the other side. The learned counsel for the appellant relies upon Ext. A1 the compromise allegedly entered into between the plaintiff and defendants 1 and 5. The Courts below did not act upon Ext. A1. It is pointed out by the respondents that as per Ext. B1 the family settlement, the appellant had right to use the C Schedule way having a width of 10 feet but there is nothing to show that the appellant had obtained absolute right over the C Schedule pathway so as to construct the compound wall on their side preventing the user of the C Schedule way by the defendants who are admittedly having plots on either side of the said pathway.

(3.) The substantial question of law raised by the appellant is whether the Courts below were right in not acting upon Ext. A1 compromise which was accepted by the Appellate Court when the CM Appeal 34 of 2003 was pending before that Court.