A Kudikidappukaran is entitled to claim a right of easement under the Easement Act, independently in a civil suit, and the 20 years period for claiming easement right should be calculated from the date of occupation of the hut or homestead, if the pathway was in use prior to the issuance of the purchase certificate.

ORDER :- Plaintiffs are the appellants. They are Kudikidappukars under the defendant, who filed an application before the Land Tribunal, Thalasserry as O.A. 696 of 1970. They were issued with a purchase certificate as evidenced by Ext. A2 dated 27-12-1973. As per Ext. A2, they are entitled to 10 cents of land as Kudikidappu. The suit was instituted by them claiming a right of pathway to their Kudikidappu through the property of the defendant.

2. On the western side of the appellants Kudikidappu there is a pathway and it was specifically pleaded in the plaint that the plaintiffs" predecessors in interest were using this pathway, namely, plaint B schedule continuously and uninterruptedly for the last 50 years as of right. Plaint A schedule property originally belonged to the grand mother of the defendant. Raman, the father of the plaintiffs was residing in a hut in plaint A schedule property as a Kudikidap-pukaran with his family. It was then that Act 35/69 conferred certain benefits and Raman applied to the Land Tribunal as aforesaid.

3. After the death of Raman, plaintiffs are in possession of plaint A schedule property. The defendant constructed a new house on the southern side of plaint A schedule property on 22-6-1993. The defendant a long with his men demolished the steps from the western road to plaint B schedule pathway so as to prevent the usage of the same. Defendant also tilled plaint B schedule pathway and planted tapioca sapplings. Plaintiffs claim that they have everyright to use plaint B schedule pathway. It was on these lines that the suit was instituted for a mandatory injunction directing the defendant to convert plaint B schedule pathway to its original position and for a perpetual injunction restraining the defendant from uinterferring with the peaceful enjoyment of the property.

4. Defendant filed a written statement contending as follows : The fact that Raman, the father of the plaintiffs was a tenant under them and that he was residing in the hut situated in plaint A schedule is admitted. The fact of purchase of Kudikidappu right in 1973 is also not disputed. Accordingly, as per the order of the Land Tribunal, ten cents including the hut and Well on the eastern side of the property was given to him as kudikidappu right. There is a lane on the eastern side of the property and this was being used by Raman and the residents of the house to reach the road in the south. In 1977 the original hut collapsed and a new house was constructed in plaint A schedule property. In 1992, the defendant also constructed a house on the south-west of the property and he shifted his new residence to that building. The original pathway from the property was from its north portion and the same was being used by the plaintiffs occasionally. The said pathway was occupying the entire length of the defendant"s property on the western side. New steps and a pathway were constructed by the defendant to his house from the western side and the old pathway occupying the entire length of the defendant"s property on the west was blocked. Then the plaintiffs trespassed into the property of the defendant and formed a way with steps from the road and the footpath leading to the north-west corner of their property. Plaintiffs have no right over the alleged plaint B schedule pathway. Upto 1973 till the said Raman obtained Kudiki-dappu right, the plaintiffs were tenants of the defendants. On these lines, the defendant prayed for dismissal of the suit.

5. The trial Court, after formulating the issues to be considered and on consideration of the evidence on record, found that the plaintiffs have no right over plaint B schedule property and the suit was dismissed.

The plaintiffs challenged the correctness of the judgment and decree passed by the trial Court. The defendant, on the other hand, filed a cross-objection against some of the findings of the Court below. The appellate Court dismissed the appeal filed by the plaintiffs and allowed the cro