JOSEPH Vs. LEELA @ SUNDHARI; THANKAPPAN

JUDGEMENT

(1.) Plaintiff in a suit for declaration of prescriptive easement right of way and prohibitory injunction, who lost in the two courts below, is the appellant. Defendants are the respondents. Pending this appeal, the second respondent died. His legal representatives are additional respondents 3 and 4.

(2.) Facts, in nut shell, are as follows: Plaintiff is the owner in possession of land described in plaint A schedule. For the last 50 years he is residing in the house in plaint A schedule property. Cheppukulam- Edamaruku-Karukappally road is passing through the western side of plaint A schedule property. First defendant is having one acre of property in between the said Panchayat road and plaint A schedule property. A pathway having a width of 12 feet and length of 50 metres runs through the first defendant's property in east-west direction starting from the Panchayat road and reaching upto the plaintiff's property. That pathway is described in plaint B schedule. Plaint B schedule pathway is in existence for more than 23 years before institution of the suit. From 11.07.1984 onwards, the plaintiff and his family members are using plaint B schedule pathway openly, continuously, uninterruptedly, peaceably, as of right and as an easement for entrance and exit to plaint A schedule property including for vehicular traffic. It is, therefore, the case of the plaintiff that he has perfected an easement right over the plaint B schedule pathway. There is no other way for ingress and egress to plaint A schedule property. Second defendant is the husband of the first defendant. Due to enmity, he tried to interfere with the plaintiff's right to ply vehicles through plaint B schedule. Therefore, he was compelled to file the suit.

(3.) The defendants contended that plaint B schedule road is only having a width of 8 feet. Plaintiff has no manner of right over plaint B schedule property. Defendants permitted the plaintiff to take vehicles through Plaint B schedule pathway on certain occasions. Plaintiff has not prescribed any easement right over plaint B schedule property. Plaintiff took vehicles through the road only after 2004 and that too with the permission of the defendants. Passage through the way was restricted by placing wooden planks. As the defendants did not accede to the plaintiff's request to remove the wooden planks, infuriated plaintiff falsely filed the suit. It is liable to be dismissed.