AMINA Vs. ASOKAN

JUDGEMENT

(1.) Challenging the concurrent findings entered by the Munsiff's Court, Aluva in O.S. No.523/2007 followed by those of the Additional District Court, North Paravur in A.S. No.245/2009, plaintiffs in the suit has come up in Second Appeal.

(2.) The suit is one for perpetual injunction restraining the defendants and their men from entering into plaint B schedule property, from taking vehicles through plaint B schedule property, and from doing anything to harm the title and enjoyment of the plaintiffs over the plaint B schedule property. The case of the plaintiffs is that plaint A schedule property belongs to the plaintiffs, which devolved on them through intestate succession on account of the death of the husband of the 1 st plaintiff, and the father of the other plaintiffs. According to the plaintiffs, the plaint A schedule property originally devolved on late Kunju Muhammed through Ext.A1 document of the year 1958. It is the claim of the plaintiffs that there was a pathway, which belong to Kunju Muhammed having a width of 1½ kols lying east west. Thereafter, through Ext.A2 sale deed No.4906/1979, Kunju Muhammed purchased a portion of the property having a length of 11 dhandu and having a width of 8½ feet. The plaintiffs have scheduled B schedule in the plaint as the said portion purchased through Ext.A2 as well as the earlier pathway mentioned in Ext.A1. According to the plaintiffs, the defendants attempted to take vehicles through the plaint B schedule property on 21.11.2007, and hence the suit.

(3.) The 1 st defendant alone contested the suit by filing a written statement. It has been contended that plaint B schedule is one obtained by way of easement by grant to the 1 st defendant and his predecessors-in-interest of his property. Over and above it, through dedication, the property owners on either side of the pathway gave properties for increasing the width of the pathway, whereby its width has been increased to 10 feet. According to the 1 st defendant, he is not a party to Ext.A2 document and, therefore, the said document is not binding on him. If at all Ext.A2 is found to be genuine, the same also forms part of the pathway and the same was being used by the 1 st defendant and his predecessors-in-interest, from the date of execution of Ext.A2 onwards. It has also been contended that the 1 st defendant has right to take vehicles through the plaint B schedule property and the plaintiffs have no manner of right to obstruct the same.