P.P. YOHANNAN Vs. PATHROSE YOHANNAN

JUDGEMENT

(1.) PLAINTIFF in O.S. 497/1995 on the file of Principal Munsiff Court, Kottayam is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for declaration of right of easement and a permanent prohibitory injunction. Case of the appellant is that item No. 1 of plaint schedule property belongs to him and he has constructed a house 28 years prior to the institution of the suit and is residing therein and item No. 2 is the adjacent northern property belonging to the respondent and there is a panchayat road on the eastern side of item No. 2 of plaint schedule properties and item No. 3 is a pathway leading from item No. 1 to the panchayat road through the northern side of item No. 2 of plaint schedule property and except that way appellant has no other way to the public road and he has right of easement by prescription over item No. 3 of plaint schedule property and therefore he is entitled to a decree for declaration of his right of easement and permanent prohibitory injunction restraining respondent from causing any obstruction to that pathway.

(2.) RESPONDENT in his written statement contended that item No. 3 of plaint schedule property is part of his property and there is no pathway as claimed and appellant has no right of easement either by necessity or prescription and originally all the properties belonged to Yohannan and the total extent of the property was 97 = cents and as per the partition deed of 1994/1120 M.E properties were divided among the three children and as per that partition, Anna, the mother of respondent obtained 15 cents and 41 cents was set apart to Itty and 41 cents was set apart to Pathrose, father of the appellant and out of 41 cents 13 cents with tharwad house was given to Issac as per settlement deed No. 496/87. On the same date 3 cents on the western side was given to Saramma, sister of the appellant and as per settlement deed dated 19.6.1987 13 cents was given to appellant by his father and it is thereafter appellant constructed the house in item No. 1 of plaint schedule property and a panchayat road exist on the western side of that property and the properties were divided considering the availability of pathway and no right of way exist over item No. 2 of plaint schedule property and therefore appellant is not entitled to the decree sought for. In the additional written statement it was contended that appellant is not entitled to claim a right of easement by prescription or necessity and they are contradictory to each other.

(3.) LEARNED Counsel appearing for appellant was heard.