ALEXANDER P. C. Vs. K. E. JOSEPH @ BENNY

JUDGEMENT

(1.) O. S. Nos. 4/2009 and 9/2009 of the Munsiff's Court, Thiruvalla were jointly tried. O.S. No. 4/2009 was dismissed with costs whereas; O.S. No. 9/2009 was decreed with costs. The plaintiff in O.S. No. 4/2009, who is the defendant in O.S. No. 9/2009, preferred A.S. Nos. 5 of 2015 and 6 of 2015 before the Subordinate Judge's Court, Thiruvalla challenging the judgments and decrees of the Munsiff's Court. Both these appeals were dismissed with costs by the lower Appellate Court, and hence these second appeals.

(2.) Both the suits are for perpetual injunction. O. S. No. 4/2009 was filed by the appellant herein for a decree of perpetual injunction restraining the respondent herein from obstructing his user of plaint schedule item No. 3 pathway. The appellant claims that the predecessor - in - interest of the plaint schedule item No. 1 property, and thereafter the appellant had been making use of plaint schedule item No. 3 pathway, continuously and openly as of right, for ingress and egress to the plaint schedule item No. 1 property for more than 70 years, prior to the filing of the suit. Precisely, what has been pleaded is the right of easement by prescription over plaint schedule item No. 3 pathway. For having access to the plaint schedule item No. 3 pathway three stone pillars are laid over the narrow watercourse passing through the western side of the plaint schedule item No.1 and the said stone pillars are being used as a small culvert. The said pathway continues through the northern extremity of plaint schedule item No. 2 property belongs to the respondent, and joins the road at the western side of plaint schedule item No. 2.

(3.) The respondent contended that there is such a pathway in existence, whereas its width is only two feet. The total width of the three stone pillars laid over the watercourse is only 22 inches. According to the respondent, the appellant had constructed his residential building in plaint schedule item No. 1 property just 15 years back to the date of the filing of the suit. As a shortcut for taking building materials into the plaint schedule item No. 1 property, the appellant sought permission from the father of the respondent to pass through the northern extremity of plaint schedule item No. 2. Consequently, the father of the respondent permitted the appellant to cause the taking of building materials through the northern extremity of the said property, for which the appellant laid the said three stone pillars over the watercourse separating these two properties. According to the respondent, the user of the appellant over the said pathway for some time was merely permissive and it has never ripened into a right of easement by prescription.