ASSEENAR HAJI Vs. KUNHIKANNAN

JUDGEMENT

(1.) This is an appeal filed by the defendant against the decision of Mathew J. in which the learned Judge declared that the plaintiffs are entitled to a right of way over pints A and A 1 in Ex. C. 1 plan as an easement to their holding. In order to appreciate the points raised by the appellant for decision, it is necessary to state a few facts. The plaintiffs and the defendant are in possession of adjacent portions of the property comprised in R. S. No. 33/1 which belonged in jenmom to Iyyakattu Illom. The southern portion of the property comprised in R. S. No. 33/1 was taken on lease by the plaintiffs from the Illom. The northern portion of the property comprised in S.No. 33/1 adjoining the public road was taken on Kuzhikanom lease from the Illom by Moosa, who assigned his rights to Abdulla. Abdulla executed Ext. A. 1 marupat on 23 9 1947 to the Illom. The plaintiffs used to go to the public road through the property in Ext. A-l. When Abdulla obstructed the right of way, the plaintiffs filed O. S.499 of 1947 in the Munsiff's Court, Taliparamba. The suit was compromised and Ext. A-3 is the compromise decree which was passed on 16 10 1947. By Ext. A-3 a right of way was allowed to the plaintiffs through the property in Ext. A1 to the public road. Subsequent to Ext. A-3 the defendant got an assignment of the rights of Abdulla by taking Ext. A-5 on 13 4 1960. The defendant subsequent to the institution of the suit, obtained under Ex. B-2 dated 24 3 1951 the jenmom rights of the Illom over the properties comprised in Ext. A-5. Since the defendant was obstructing the plaintiffs in the exercise of their right of way granted to him under Ext. A-3 the suit was filed by him for the necessary reliefs.

(2.) The learned single Judge held that the right of way decreed to the plaintiffs under Ext. A-3 is through plots A and A1 in Ext. C1 plan and not through B-l shown in Ext. C1 and it is not in any way affected by the defendant purchasing the jenmom right under Ex. B-2.

(3.) Both these findings of the learned single Judge were attacked before us by the counsel for the appellant. The case of the appellant that Ext. A-3 granted the plaintiffs right of way only through the portion marked B-l in Ext. C1 plan was not accepted by any of the courts. While the learned Munsiff took the view that the right of way provided in Ext. A-3 lay through A and A1 in Ext. C1 the learned Subordinate Judge held that the right of way in Ext. A-3 was through A-l and B in Ex. C-l. The learned single Judge agreed with the finding of the learned Munsiff. We do not find any reason to interfere with the finding of the learned Single Judge. The learned single Judge on an appreciation of the evidence came to the conclusion that plots B and C in Ext. C1 plan do not form part of Abdulla's property comprised in Ext. A-l. We agree with the conclusion of the learned Judge. If so the right of way allowed in Ext. A-3 can only run through plots A-l and A in Ex. C-l.