THOMMAN JOSEPH Vs. PARAMESWARAN NAMBOOTHIRI

JUDGEMENT

(1.) Defendants in O.S.326/1981 on the file of Munsiff Court, Thodupuzha are the appellants. Plaintiffs are the respondents. Respondents instituted the suit seeking a decree for permanent prohibitory injunction restraining appellants from obstructing their right of way over plaint C schedule pathway and from closing or locking the same and also for a declaration of their right of way by easement of prescription.

(2.) Plaint A schedule property measuring 3.67 acres is admittedly the residential property of respondents which was obtained by the father of first respondent under Ext.A1 partition deed dated 30.11.1952. Plaint B schedule property having an extent of 1.23 acres belongs to second appellant as per Ext.A5 registered sale deed dated 26.3.1976. Plaint C schedule property is the way claimed by respondents leading from Thodupuzha-Moolamattom road and reaches the plaint A schedule property belonging to respondents. Respondents contended that the said way starts from Thodupuzha- Moolamattom road and passes westward through plaint B schedule property then takes a turn to the north from the western extremity of plaint B schedule property and reaches plaint A schedule property and that way has been continuously used by respondents and the predecessors for the last 75 years openly, peacefully and as of right and as an easement without any obstruction and thereby acquired a right of easement by prescription and appellants are not entitled to cause any obstruction to the way. The decree for declaration and permanent prohibitory injunction was later sought by amending the plaint. Appellants resisted the suit contending that respondents have no right of way through plaint schedule B property and plaint B schedule property was never used as a way to reach the house of respondents and the property which lies to the west of plaint B schedule property was purchased by Vasudevan Nampoothiri in 1967 and before that Vasudevan Nampoothiri was residing in the property which lies to the south of the plaint B schedule property and father of Vasudevan Nampoothiri shifted his residence from there in 1969 and a pathway to the west in continuation of the road which was formed by vasudevan Nampoothiri to his house which was on the south of the plaint B schedule property was widened to a road pursuant to Ext.B3 agreement and respondents have no right of way over it and they have not prescribed any right of way and hence they are not entitled to a decree for declaration or injunction sought for.

(3.) Learned Munsiff on the evidence of Pws. 1 to 4, DWs. 1 to 7, Exts.A1 to A10, Ext.B1 to B3, Ext.X1 and X1(a) and C1 and C2, upheld the case of respondents and granted a decree declaring that respondents acquired a right of way by easement of prescription over plaint C schedule pathway which is within the plaint B schedule property. Appellants were restrained by a decree for permanent prohibitory injunction from causing any obstruction to the respondents in using plaint C schedule pathway, including altering the present situation, or closing or locking the gate fitted at any portion of plaint C schedule pathway. Appellants challenged the decree and judgment before District Court in A.S.59/1991. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff. The learned District Judge has prepared a sketch of his own and appended it to the judgment and directed that the said sketch be part of the decree. Learned District Judge upholding the right of easement by prescription claimed by respondents held that respondents are entitled to plaint C schedule pathway which is shown as plot A B C D E P Q R S U V in the rough sketch appended to the judgment and thus confirmed the decree. The said decree and judgment are challenged in the appeal.