SANDHYA Vs. SURESH BABU

JUDGEMENT

(1.) The defeated plaintiff in a suit for injunction is the appellant in the present appeal has come up aggrieved by the concurrent findings rendered by the Principal Munsiff Court - I, Kozhikode in O.S. No. 312 of 2019 affirmed in A.S. No. 123 of 2023 by the District Court, Kozhikode.

(2.) Plaint 'A' schedule property was purchased by the plaintiff by Ext. A1 document in the year 2018. Plaint 'B' schedule consists of two items: item no. 1 in favour of the defendant and item no. 2 in favour of the predecessor of the defendant. 'C' schedule is the disputed item in the present appeal which consists of a 6 feet pathway having an extent of 0.80 cents. The property originally belonged to Thirumalakutty as per a Kanam Assignment Deed No. 1895/1931. After her death, the legal heirs partitioned the aforesaid property by a Partition Deed No. 2792/1981 dtd. 21/10/1981. Plaint 'A' schedule was set apart to the share of one Velayudhan. The said Velayudhan by Sale Deed No. 832/1988 sold the property to one Saleena Jose. She in turn, by a Sale Deed of the year 1996, sold an extent of 5.89 cents in favour of one Beena Rani. By a Sale Deed No. 439/2007, Saleena Jose had sold 7.56 cents in favour of one Sangeeth K. Menon and his wife. While so, Beena Rani sold the property in her possession in favour of the defendant as per Sale Deed No. 2977/2002. The extent of property sold to the defendant is 5.89 cents. In the said Deed, Beena Rani had conferred on the defendant the right to use the pathway in question. Thereafter, on 14/9/2018, the plaintiff purchased right, title and interest over A schedule property vested with Sangeeth K. Menon and his wife by Ext. A1 Sale Deed No. 2450/2018. In the meantime, it appears that the defendant had constructed two gates in the 'C' schedule property in order to regulate the entry of the persons into item no. 1 of 'B' schedule property. Insofar as item no. 2 is concerned, the defendant purchased it from another sharer which is not the subject matter of the dispute in the present case. It is an admitted case that the defendant had only a right to use 'C' schedule pathway for ingress and egress into his property. Since the defendant obstructed the plaintiff to access 'C' schedule in order to enter into the 'A' schedule property, the suit was instituted. In the suit, a specific case of easement by implied grant was set up. The plaintiff thus prayed for a decree of mandatory injunction directing the defendant to open the lock of the gate or removing the gate kept in locked condition and also consequential prohibitory injunction.

(3.) On 20/6/2025, this Court admitted the appeal on the following substantial questions of law;