CHEROOTTY BALAN Vs. VELAYUDHAN NAIR

JUDGEMENT

(1.) This Second Appeal is, directed against the decree and judgment in A.S. No. 97 of 1987 of the Sub Court, Kozhikode, which was filed against the decree and judgment in O.S. No. 608 of 1983 of the Munsiff's Court, Kozhikode. The defendant is the appellant.

(2.) The plaintiff's case is this: The plaint A schedule property originally belonged to Thekke Palangat tarwad, from whom the property devolved on Kayyalil Achuma. One Kunhirayan purchased the property from Kayyalil Achuma in the year 1959. He had put up a building and effected improvements. The plaintiff purchased the property in 1966 from Kunhirayan. Kunhirayan dismantled the building, which was in a dilapidated condition and put up a new one and started residing therein. The plaintiff and his predecessors in interest were using the B schedule bund for ingress and egress to the plaint A schedule item. The properties on either side of the B Schedule belongs to the defendant. The A schedule property is lying on a lower level. On allegation that the defendant is attempting to annex a portion of the bund which is used as a pathway to his property, the suit has been filed for a decree of permanent injunction.

(3.) The defendant contested the suit. He would contend that the plaintiff has no right over the B schedule property, as it forms part of his property. The property belonging to the defendant is a paddy field and B schedule is the varamba in between the paddy fields. An electric post has been planted in the varamba without the consent of the defendant. The post was planted on 17-2-1983. In spite of repeated requested the defendant did not remove the post. Since the defendant has come to know that the post was planted for drawing electric line to a neighbour's house, he did not pursue further for removal of the post. He also denies the allegation that he had attempted to annex the pathway to his property. The plaintiff and others filed a petition before the R.D.O., alleging that the defendant is obstructing the pathway. The plaintiff and defendant were examined and later it was agreed to provide way for the use of the complainants including the plaintiff through the paddy field in the possession of the defendant. Thus, a new way was put up so as to gain access from the north - eastern corner of the plaint A schedule property to the public way on the north.