K KUNJUKRISHNAN Vs. T YOVEL

JUDGEMENT

(1.) This Second appeal had been filed by the plaintiff in O.S.No.279 of 1992 on the fie of the Principal District Munsif Court, Padmanabhapuram. O.S.No.279 of 1992 had been filed by the plaintiff K.Kunjukrishnan against two defendants T.Yovel and his wife Pushpam, seeking right of easement of path over the plaint schedule property and for decree of permanent injunction restraining the defendants from disturbing or obstructing the use of the said path. The said path had been described as a path way of ten links breadth in old Survey No.4447, resurvey No.38/2 at Attor Village, Kalkulam Taluk, Thiruvattar, Kanyakumari District.

(2.) The plaintiff claimed that the said path was owned by his family and it was the subject matter of a partition deed in document No.4283 dated 06.08.1968. The larger extent of land in survey No.4447 was partitioned as plot Nos.4-1 to 4-5. Plot No.4-2 measuring 400 square links was left as graveyard. The plots east of them were numbered as plots-4-3, 4- 4 and 4-5. Towards the further east of the land was "Poromboke Idavazhi". The path, south of the plots-4-3, 4-4 and 4-5 was used to reach the graveyard in plot No.4-2, on the southern portion of plot no.4-1. It was described as graveyard in the partition deed. It was covenanted that there shall be no obstruction for the use of the path. There was no demarcation or fence put up separating the plots. Even the graveyard lies without any demarcation. The cemeteries of the plaintiff's parents and sisters, paternal uncle and aunt were in the graveyard. The defendants had purchased plot Nos.4-4 and 4- 5 in the year 1987. It was alleged that the defendants attempted to close the path on 15.03.199 This was prevented by the plaintiff. It had been claimed that the path had been used for a long period of time. It was the only path way to go to the graveyard of the plaintiff's parents and relatives. It is under these circumstances, that the suit had been filed, seeking the reliefs as stated above.

(3.) The defendants filed their written statement. They stated that there was no pathway within resurvey No.38-2. It was claimed that under the partition deed, there was no path way within resurvey No.38/2. It was stated that 'Poromboke Idavazhi' was further east and south. It was classified as resurvey No.38/5. It starts on the road on the east and reaches the river on the west. To reach the graveyard, the parties have been going through the 'Poromboke Idavazhi' namely resurvey No.38/5. The owners of the plots also used the said 'Poromboke Idavazhi'. It was stated that the plots were partitioned with marked boundaries. The graveyard was also marked by put up boundary stones. It was denied that there was a pathway. It was denied that the defendants attempted to close the pathway. It had been stated that the suit should be dismissed as there was no cause of auction.