SHAJAHAN Vs. SUMA SATHEESAN NAIR

JUDGEMENT

(1.) The defendants are the appellants. Suit was for declaration of right of quasi-easement of the plaintiff over a path-way and for consequential injunction against the defendants. Trial Court dismissed the suit. In appeal, the lower appellate Court revers-ing the decree of dismissal granted a decree declaring right of quasi-easement of the plaintiff over the pathway and also a prohibi-tory injunction against defendants from caus-ing obstruction to the use of that pathway.

(2.) Notice had been issued for hearing on all substantial questions of law I to IX for-mulated in the memorandum of appeal. How-ever, after hearing the submissions of the counsel on both sides, I have reframed the questions of law as hereunder, and heard fur-ther arguments on such questions :

(3.) The 2nd defendant/2nd appellant is the power of attorney of the 1st defendant/1st appellant, and his interest is limited only as an agent of the 1st defendant. Declaration of right of quasi easement is claimed by the plaintiff over plaint schedule item No. 3 property which formed part of item No. 2 property belonging to the 1st defendant. Plaint schedule item No. 1 property was purchased by plaintiff under Ext. Al sale deed. Plaint schedule item Nos. 1 and 2 formed part of 94.750 cents of property belonging to one Padmanabhan. After his death that property with another item was divided among his children under Ext. Bl partition deed. His six children were allotted shares in the afore-said property of 94.750 cents as under schedules 'A, 'B' 'C' 'D', 'E' and 'G'. His other two children were given their shares in the other property. The above property divided under 'A' to 'G' schedules had a frontage to the National Highway on its western side. Plaintiff is the assignee of 'G' schedule allottee and the 1st defendant, the assignee of 'B' schedule allottee. The assignor of plain-tiff under 'G' schedule got 10.750 cents comprising three shop rooms abutting the national highway on the western side. She sold the northern most and southern most shop rooms to others retaining the middle shop room. The middle shop room with the land on the rear side in 'G' schedule, both together, comprising an extent of 8 cents 963 sq. links, was sold to plaintiff under Ext. Al sale deed. 'B' schedule allotted to the sharer thereof is situ-ate on the northern side of 'G' schedule. A major portion of 'B' schedule is situate to the north and east of 'G' schedule with a strip of land protruding from east to west touching the western national highway, as situate on the northern side of 'G' schedule. 'B' schedule has 16 links long boundary on the side of national highway on the western side. Over the aforesaid strip of land in 'B' schedule situate on the northern side of 'G' schedule and touching the national highway on the western side an accommodation of way existed and it continued upto the eastern extremity of 'G' schedule property when partition of the property was effected under Ext. Bl deed and it continued ever since, was the case of the plaintiff-assignee of a portion of 'B' schedule property to claim the right of quasi easement over such pathway describing it as item No. 3 property in the suit. That claim canvassed by plaintiff on the materials placed was found unsustainable by the learned Munsiff who dismissed her suit. However, in appeal, learned Sub Judge re-appreciating the materials on record has up-held the claim declaring the right of quasi easement of the plaintiff over plaint schedule item No. 3 pathway. A decree of prohibitory injunction was also passed against the defendants from causing any obstruction to the enjoyment of that way by plaintiff.