KRISHNA PILLAI Vs. KUNJUPILLAI

JUDGEMENT

(1.) Second appeal is by the plaintiffs, in a suit for permanent prohibitory injunction, who lost in both the courts below.

(2.) The suit property is nearly two acres of land, which is admittedly owned and possessed by the appellants. Respondents are the adjacent owners. They are sought to be injuncted from taking forcible possession of the suit property or disturbing the peaceful possession of the appellants on the allegation that they are going to take possession by force. Respondents denied these allegations and admitted the title and possession of the appellants. Their only defence is that there is a pathway through the plaint schedule property, over which they acquired a prescriptive easement for ingress and egress to their property and building and the object of the present suit is only to deprive them of that right under the cover of injunction without disclosing the real facts. Issue No.2 is concerning the easement right.

(3.) Trial Court as well as the appellate court found on the evidence that there is a pathway through the plaint schedule property which is being used by the respondents. So also, the finding is that except the user of the pathway, respondents never interfered with the proprietary rights of the appellants giving rise to a cause of action for injunction. There is no serious dispute on these aspects, except denial of the easement right coupled with a contention that user of the pathway is only by way of permission which was withdrawn and not as of right. The main contention of the appellants is that a prescriptive right of easement cannot be accepted as a defence in a suit for-injunction and the only remedies open to the respondents are to establish the right by way of counter claim or a declaratory relief in a suit. Rejecting these contentions, Trial Court dismissed the suit holding that the respondents acquired a prescriptive easement right. But the appellate court disagreed and said that without a counter claim the prescriptive easement right cannot be considered by way of defence. The finding of prescriptive easement right was vacated and Issue No.2 was deleted as unnecessary since the suit is one for injunction where possession alone is material. But the dismissal of the suit was confirmed on the finding that respondents are using the pathway and they cannot be restrained.