SREE SWYAM PRAKASH ASHRAMAM Vs. N GOPALA PILLAI

JUDGEMENT

(1.) Defendants 1 to 4 in O.S.887/1982 on the file of the Munsiff's Court, Thiruvananthapuram who lost their case concurrently in both the courts below are the appellants. The plaintiff in the suit was the sole respondent. He passed away pending this second appeal and his LRs are additional respondents 2 to 7.

(2.) Late first respondent instituted O.S.887/1982 for a decree declaring his right of easement over 'B' schedule pathway and for an injunction. He alleged inter alia that the first defendant is an unregistered association of numerous persons and the first defendant is sued in a representative capacity. Plaint A and B schedule properties originally formed part of a vast extent of properties which belonged to one Yogini Amma by name Sarwa Sakshi Amma Swayam Prakash Yogini Amma Thiruvadikal. She had only one brother by name Krishna Pillai who was the sole legal heir of the whole estate of deceased Yogini Amma. During the life time of Yogini Amma, the entire property was enjoyed by her for the management of the first defendant Ashramam. On her death, her legal heir Krishna Pillai and other disciples executed Ext.A1 settlement deed as per the directions of the deceased Yogini Amma. As per the said settlement, plaint A schedule property along with other properties were given to the plaintiff included under 'C' schedule of Ext.A1. Ever thereafter the plaintiff has been in absolute possession and enjoyment of the said properties effecting mutation and paying tax. Plaint A schedule property lies on the North Eastern portion of Sy.No.1702 and 1817 which belonged to the first defendant. Even before the settlement deed and even during the life time of the said Yogini Amma, there was a building in plaint A schedule property that was in occupation of the plaintiff. The property in Sy.1702 lies on the Northern side of a public road leading from Chavadi junction to Kulathur. On the South Western corner of the property in Sy. No.1702 begins a road towards North through the Western side of the property in Sy. No.1817. It branches into three one extending towards West; another towards North and; the other branch terminating on the Southern meeting point of properties in Sy.Nos.1702 and 1817. There is a gate provided on the South Western portion of the A schedule for ingress and egress to plaint 'A' schedule property and Plaint 'B' schedule pathway extends up to the road on the West from the said gate through property in Sy. No.1702. The said gate and 'B' schedule pathway are having the age of the building in plaint 'A' schedule property. Other than 'B' schedule pathway, there is no other means of direct or indirect access to Plaint 'A' schedule property from any road or pathway. The plaintiff was using the same from its very formation as means of traffic and passage to Plaint 'A' schedule property and the building therein. The said pathway has been granted to the plaintiff as an easement by the said Yogini Amma and the plaintiff is using it as such from time immemorial. The said 'B' schedule pathway is situated within the property of the said Yogini Amma which is now under the control and use of the defendants. However, after the construction of the B schedule pathway several buildings were constructed in properties comprised in Sy.Nos.1702 and 1817 which are occupied by the defendants. The defendants are aware that the Plaint 'B' schedule pathway is an easement of necessity. Defendants 2 to 4 started selling portions of properties of the first defendant. Plaintiff who is a devotee and is highly interested in the first defendant resisted the illegal acts. Infuriated by this, defendants 2 to 4 are attempting to close down the gate on the South Western extremity of the 'B' schedule pathway and are also attempting to change the lie nature and existence of the 'B' schedule to wreak vengeance against the plaintiff. An attempt in that direction was made on 21.7.1982. Defendants are highly influential. Plaintiff apprehends that defendants 2 to 4 will forcibly close down the pathway. The acts of the defendants have caused a cloud on the easement right of the plaintiff over the 'B' schedule property and hence, the suit for declaration of plaintiffs easement right and for a prohibitory injunction restraining defendants from causing any obstruction to use of B schedule property as a pathway.

(3.) Defendants 1 to 4 filed a joint written statement raising inter alia the following contentions: