MOHANAN Vs. GANGADHARAN

JUDGEMENT

(1.) The appellants are the defendants in O.S. No. 92/1993 on the files of the Munsiff's Court, North Paravur. The aforesaid suit was filed for a decree of prohibitory injunction, restraining the defendants from trespassing into the plaint schedule property and committing waste therein. According to the plaintiff, the plaint schedule property, having an extent of 19.500 cents, belongs to him by virtue of Ext.A3 sale deed and the plaintiff is residing in a building situated in the plaint schedule property. The property situates on the south-western side of the property of the 2nd defendant and the 2nd defendant obtained the said property seven years ago from one Raghavan. The plaintiff has put up a fence on the northern and southern boundaries of the plaint schedule property. The defendants have no kind of right over the plaint schedule property. They have access to the public road which lies on the western side of their property; but recently they threatened the plaintiff that they will demolish the fence on the southern side of the plaint schedule and trespass into the plaint schedule and open a new pathway through the western side of the boundary. Hence the suit for injunction.

(2.) The defendants filed a joint written statement contending that the suit has been filed suppressing the material facts. The 2nd defendant had started residence in the property 10 years back and prior to that, their predecessors-in-interest one Raghavan and one Thoppil Joy were also residing in the property. On the northern side of the property of the defendants, the 2nd defendant had put up a fence and there is a gap in that boundary through which they entered into the plaint schedule property and proceeded towards north and reached the property of the daughter of Lonankunju and ultimately to Vypeen - Munambam public road. Apart from the aforesaid pathway, there is no other means of access to the property of the 2nd defendant. The 2nd defendant had to pass through the plaint schedule property for the purpose of drawing water from the tap situated on the northern side of the plaint schedule property. The suit was instituted immediately after closing the gap in the fence on the southern side of the plaint schedule property. The defendants have easement right of way by prescription though the plaint schedule property. Hence the suit is liable to be dismissed for the suppression of material facts.

(3.) On the aforesaid rival pleadings, both parties adduced evidence, consists of P.Ws.1 to 4, D.Ws.1 to 5 and Exts.A1 to A3, B1 to B5, X1 to X2(f) and C1 and C1 (a). After trial, the trial court found that the plaintiff has suppressed the material facts and thereby, the plaintiff is not entitled to get the equitable remedy under Sec.34 of the Specific Relief Act. Hence the suit was dismissed.