PAUL Vs. VARGHESE AND ORS.

JUDGEMENT

(1.) This Original Petition arises from a suit instituted by respondents 1 and 2, who are son and mother respectively, for a declaration that they have acquired right of easement by prescription over the plaint B schedule way. The respondents reside in the plaint A schedule property belonging to the first respondent, in which the second respondent has life interest. The adjoining northern property belongs to the petitioner. Plaint B schedule way is in this property. The parties are close relatives. Their properties belonged to their ancestor Kunju Vareed. In a partition that took place in his family in 1099 ME (1924 AD) the plaint A schedule property was allotted to the grandfather of the first respondent and the northern property to the grandfather of the petitioner. The respondents allege that the B schedule pathway came into existence in 1099 M.E. and for the last 90 years they and their ancestors have been using it for their ingress and egress. Just before the suit was filed the petitioner allegedly dumped pieces of granite and rubble in the plaint B schedule way, which is said to be the cause of action for the suit. Along with the plaint the respondents filed an application for a temporary mandatory injunction directing them to remove obstruction on the way. The petitioner contends that the respondents have no right of way over the plaint B schedule property and their claim is false. According to him, to the west of the properties involved in the suit there is a Panchayat road and there is a road leading from it up to the house of the respondents in the plaint A schedule property; national highway runs along the eastern boundary of the respondents' property; eastern portion of the respondents' property was acquired to widen the national highway, as a consequence of which the respondents' property now lies at a higher level than the national highway; they wanted to form a road through their property from the national highway, for which dumping of soil was necessary as the difference in level was considerable; the petitioner granted their request to take vehicles through his property so that they may take soil from their property in order to form the road but the respondents started removing soil from their property destroying the lateral support of the petitioner's property; so he withdrew the permission granted to them to take vehicles through his property. It is this that has caused them to file the suit raising false allegations. The learned Munsiff took the view that the respondents have established a prima facie case and so they are entitled to the temporary mandatory injunction prayed for. This has been upheld by the Appellate Court in CMA No. 30 of 2015.

(2.) Heard the learned counsel on both sides.

(3.) Unless there is a dominant heritage and a servient heritage right of easement cannot be claimed. As these two properties form subject matter of the suit, both of them should be described in separate schedules in the plaint. The way over which the right is claimed should be described in another schedule. In the plaint filed by the respondent the servient heritage is not described in a schedule.