S ARULAMMAL Vs. P RENJAMONY

JUDGEMENT

(1.) THE defendants are the appellants in the second appeal. THE respondents in the second appeal filed the original suit O.S.No.53 of 2007, on the file of the learned District Munsif, Eraniel for the relief of declaration of easementary right over plaint 'B' schedule property and also for permanent injunction against the appellants/defendants restraining them from in any way interfering or preventing the plaintiffs from using the easementary right or from making any construction over the plaint 'B' schedule property so as to cause hindrance to the use of easementary right.

(2.) THE trial court after hearing, dismissed the suit with costs by its judgment and decree, dated 30.06.2009. THE same was challenged by the respondents herein/plaintiffs before the lower appellate court, namely the court of Subordinate Judge, Padmanabhapuram in A.S.No.39 of 2009. THE learned first appellate Judge allowed the appeal, set aside the decree passed by the trial court and decreed the suit of the respondents herein/plaintiffs as prayed for. As against the said judgment and decree of the first appellate Judge, dated 03.03.2010, the present second appeal has been preferred by the appellants herein, who were the defendants before the trial court.

(3.) THERE is no pathway in plaint 'B' schedule property as claimed by the respondents/plaintiffs. Plaint 'B' schedule property is a part of the property belonging to the first appellant/first defendant and he is in exclusive possession and enjoyment of the same. The plaint 'B' schedule property is not being used by the respondents/plaintiffs as an access to reach plaint 'A' schedule of properties. THERE is a road on the western side of the defendants' property which starts from Channel Karai and reaches the village road touching the plaint 'A' schedule properties. The respondents/plaintiffs are using the said road to reach their properties described in plaint 'A' schedule and there is no necessity for them to use plaint 'B' schedule property as a pathway. The above said road was being used by the respondents/plaintiffs for about 25 years. As the second appellant/second defendant is neither the owner of the plint 'B' schedule property.It is not correct to state that a compound wall leaving plaint 'B' schedule property as a pathway was put up and the same was later on demolished. Such compound wall was not erected and hence there was no necessity to demolish the same. The second appellant/second defendant is the owner of Resurvey No.278/4 in Eraniel village and the same is in his exclusive possession and enjoyment. The plaint 'B' schedule property does not form part of the said property. It is incorrect to state that the respondents/plaintiffs are using the plaint 'B' schedule property as a pathway to reach their house in plaint 'A' schedule properties. THEREfore,the plaintiffs shall not be entitled to any of the reliefs sought for by them and the suit has to be dismissed.