JASNA P D/O MOOSA KOYA Vs. ABBAS

JUDGEMENT

(1.) Challenging the concurrent findings entered by the First Additional Munsiff's Court, Kozhikode in O.S.No.469 of 2008 followed by those of the II Additional District Court, Kozhikode, in A.S.No.52 of 2010, the Additional 2 nd plaintiff in the suit has come up in Regular Second Appeal. During the pendency of the suit before the trial court, the original plaintiff died. Prior to that, he had assigned the property through Exhibit-A1 to the present appellant. The present appellant got herself impleaded in the suit as Additional 2 nd plaintiff.

(2.) The suit is one for declaration and consequential injunction. The case of the plaintiff is that plaint A schedule shop rooms belong to one Kunhilakshmi Amma, were purchased by the 1 st plaintiff through Exhibit-A2 sale deed and Exhibit-A3 release deed of the year 1975. Three shop rooms are there in plaint A schedule item as Room Nos.7/1064, 7/1065 and 7/1066. Room No.7/1065 is on the first floor and Room Nos.7/1064 and 7/1066 are in the ground floor. Earlier, there were tenants in Room No.7/1066 as well as Room No.7/1065. The plaintiff got those tenants evicted through due process of law. There is a staircase on the western side of Room No.7/1066 for enabling the plaintiff to have access to the upper Room No.7/1065. The property on the western side of plaint A schedule property was purchased by the defendants. Plaint B schedule is the only pathway to reach Room No.7/1066 and also to the aforesaid western staircase leading to Room No.7/1065.

(3.) The properties of the plaintiff as well as the properties of the defendants were purchased from the common predecessors in interest. On that ground, the plaintiff claims that the plaintiff is entitled to easement by necessity over plaint B schedule property for having access to Room No.7/1066 as well as to the staircase leading to Room No.7/1065. Over an above it, it has been specifically claimed that for the last more than 50 years, the predecessors in interest of the plaintiff, in continuation by the plaintiff, have been making use of plaint B schedule pathway for having access to Room No.7/1066 as well as to the staircase leading to Room No.7/1065, openly, continuously and as of right. In short, easement by prescription has also been specifically pleaded in the plaint. During evidence, the plaintiff has virtually given up the plea of easement by necessity and has concentrated on the plea of easement by prescription.