GIRIJA KUMARI AMMA RAMAKRISHNA VIHAR Vs. SASEENDRAN PILLAI

JUDGEMENT

(1.) Aggrieved by the concurrent finding rendered by both the trial court and the first appellate court in its decree and judgment, the plaintiff came up with this appeal.

(2.) The suit is one for declaration of easement right of way and for consequential injunction. The suit was dismissed by both the trail court and the first appellate court, rejecting the claim of plaintiff.

(3.) The plaint A schedule property belong to the first defendant and B schedule is the property of second defendant, who is none else the wife of first defendant. C schedule is the property of plaintiff and D schedule is the pathway over which the plaintiff claims easement right of way. These properties were originally given to the first defendant and the plaintiff under the settlement deed of the year 1979 wherein a large extent of 8 acres 72 cents of property was divided into eight shares and given to the children of the testator. The share of the mother was purchased by the first defendant as such A schedule property takes in two shares under Ext.A1 settlement deed. The share of youngest daughter was purchased by the second defendant, which is the B schedule in the plaint. The property allotted to the plaintiff scheduled in the plaint as C schedule. The dispute is pertaining to the way scheduled in the plaint as D schedule. The first appellate court confirmed the dismissal of the suit mainly on the ground that, there was no evidence to show the user of the property, the D schedule way for the last 35 years, as alleged by the plaintiff and the pleadings raised in the plaint are not specific enough to bring the matter within the purview of an easement by way of prescription. The trial court dismissed the suit on the ground that there was no sufficient evidence to show the user of way for the last 35 years, as pleaded and the relief sought in the plaint is not specific as to what is the declaration sought by the plaintiff. The specific right claimed by the plaintiff is not made mentioned in the declaration relief and what is sought is only a easement of way, without specifying its nature? Whether it is prescriptive, necessity, quasi easement, natural easement or easement by custom.