AGNESS P.J. AND ORS. Vs. JOSEPH

JUDGEMENT

(1.) The defendants in a suit for declaration and injunction are the appellants in this second appeal.

(2.) The plaint schedule item No. 1 property belongs to the plaintiff. The said property was originally obtained by the plaintiff, his mother and sister as per Ext. A1 sale deed of the year 1975. Later, the mother and sister of the plaintiff released their rights over the property in favour of the plaintiff as per Ext. A2 release deed of the year 2004. The property on the south of the plaint schedule item No. 1 property belongs to the defendants. There is a panchayat road on the south of the property of the defendants. According to the plaintiff, there exists a pathway having a width of 8 ft. and a length of 35 mts. connecting the south western corner of the plaint schedule item No. 1 property and the southern panchayat road. The said pathway is described in the plaint schedule item No. 2. The case of the plaintiff is that he has been using the plaint schedule item No. 2 pathway ever since the date of Ext. A1 sale deed continuously, uninterruptedly, peacefully, openly and as of right and as such he has prescribed a right of easement over the said pathway. It is alleged by the plaintiff that on 13/3/2011, the defendants have attempted to cause obstructions to the user of the plaint schedule item No. 2 pathway by the plaintiff. The suit was filed in the circumstances, seeking a decree declaring the right of easement by prescription of the plaintiff over the plaint schedule item No. 2 pathway and for a decree of permanent prohibitory injunction restraining the defendants from causing obstructions to the plaintiff in the matter of using the plaint schedule item No. 2 pathway. The defendants resisted the suit by filing a written statement. The contention raised by the defendants in the written statement filed by them was that the access to the plaint schedule item No. 1 property is through the property on the east of the same which is abutting the National Highway on its east and that the plaintiff has been using their property described as plaint schedule item No. 2 as permitted by them since 2004 when the plaintiff has constructed a residential house in his property. In other words, the case set up by the defendants was that the plaintiff has no right to use any portion of the property of the defendants for access to the plaint schedule item No. 1 property.

(3.) The trial court noticed that the plaint schedule item No. 2 pathway passes through the middle of the property of the defendants. It also noticed that there exists an aged compound wall separating the property of the defendants from the southern panchayat road. It further noticed that the building in the plaint schedule item No. 1 property was constructed only in the year 2004. In the circumstances, the trial court found that the plaintiff has not established that the user of the plaint schedule item No. 2 pathway by him was as an easement and that the said user can only be construed as permissive. Consequently, the suit was dismissed. The plaintiff took up the matter in appeal. The appellate court however, reversed the decision of the trial court and decreed the suit holding that merely for the reason that the property of the defendant is protected by a compound wall on its south, it cannot be said that the plaintiff cannot claim a right of easement through a portion of the said property. The appellate court also held that the existence of a building in the dominant tenement is not sine qua non for claiming a right of easement by prescription. The defendants are aggrieved by the said decision of the appellate court and hence this second appeal.