BADARIYA MADRASSA COMMITTEE Vs. ANTONY ROBERT BREGANZA

JUDGEMENT

(1.) This second appeal is filed by the defendants in O.S.381/1987 on the file of the Munsiff Court, Kannur. The suit was for declaration and injunction. The plaintiff is the owner of plaint A-schedule property. According to the plaintiff the access to the plaintiff's house and property is through the plaint B-schedule property to reach Kilasi road situated on the west. The plaintiff further alleged that he was having motor vehicles and the plaintiff used to ply his vehicles through Kilasi road and plaint B-Schedule property to reach plaint A-schedule property. The defendant started construction of a building encroaching into plaint B-schedule property and obstructing the right of way of the plaintiff which he was enjoying for more than 70 years. The plaintiff claimed a right of way by prescriptive easement to use plaint B-schedule property for vehicular traffic.

(2.) The defendants contended that the plaintiff was not entitled for any such declaration or injunction. The plaintiff had no right of way through defendants' property. The Kilasi road itself came into existence recently. It was only a lane earlier. The defendant committee has been constituted to conduct a Madrasa for imparting religious education to the children of the locality. The committee has purchased the land for construction of a hall for this purpose. The committee has obtained the plan from the municipality for construction of the hall as early as in 1983. Plaintiff had filed a complaint before the Revenue Divisional Officer, Tellicherry alleging that his right of way was infringed. On enquiry the RDO found that there was no passage through defendant's property. The plaintiff has got passage in front of his house on the eastern side which leads to Ayikkara road. Even if the plaintiff used to use the passage occasionally it would not confer any right on the plaintiff.

(3.) Both the trial court as well as the first appellate court have granted a decree declaring plaintiff's right of way over plaint B-schedule property having a width of 6 feet 8 inches by prescriptive easement right and the defendants are injuncted from making any construction so as to prevent free passage enjoyed by the plaintiff to plaint A-Schedule property. Ext.C2 plan was directed to form part of the decree.