LAKSHMI Vs. GEORGE

JUDGEMENT

(1.) The second appeal has been filed against the judgment and decree dated 24.07.2002 made in A.S.No.37 of 1994 on the file of the Sub Court, Padmanabhapuram, reversing the judgment and decree dated 10.02.1994 in O.S.No.318 of 1983 on the file of the Additional District Munsif, Padmanabhapuram.

(2.) The respondents 1 to 10 are plaintiffs and the appellants are defendants 1 to 3 and respondents 11 to 25 are defendants 4 to 19 in the suit. The parties are referred to as per their rank in the suit for convenience.

(3.) The plaintiffs 1 to 4 are brothers; plaintiffs 5 to 7 are neighbours; 1st defendant is the mother of defendants 2 to 6; defendants 7 to 9 are paternal uncles of defendants 2 to 6. The case of the plaintiffs is that originally, Item No.1 of the suit property was a poramboke land which was in possession of the father of the defendants 7 to 9 namely, Chella Perumal Nadar. After his death, a partition between the defendants 7 to 9 and husband of the 1st defendant and another son of Chella Perumal Nadar namely, Chellappan was effected, by which, all of them got equal share over item No.1. After the death of Chellappan, defendants 1 to 6 inherited his share as his legal heirs. Item No.2 is the patta land stands in the name of the defendants 1 to 6. According to the plaintiffs, on the eastern side of item No.2 of the suit property, there is a panchayat road leading to Trivandrum- Nagercoil main road and the plaintiffs and others adjacent to them were using the pathway which runs through the suit items 1 and 2 to reach the panchayat road, for more than 100 years. On 03.04.1983, the defendants 1 to 3 constructed a wall on the south western side of item No.1 and also put up a cattle shed, thereby obstructed the old pathway(red dotted in the plaint rough sketch), but a new pathway(green dotted in the plaint rough sketch) was created through item No.2(S.No.481/10) and S.No.481/11. While so, on 30.05.1983, the defendants attempted to construct a new wall obstructing the new pathway. Hence, the plaintiffs filed the above suit in O.S.No.318 of 1983 against the defendants before the Additional District Munsif, Padmanabhapuram, for declaration as to their easementary right through the old pathway running through the suit items 1 and 2 and mandatory injunction to remove the construction on the south-west of item No.1 and for alternative relief of permanent injunction restraining the defendants from interfering with the enjoyment of the plaintiffs over the new pathway running through the suit items 1 and 2.