The central legal point established in the judgment is that the plaintiff failed to establish the right of way over the defendant's property and cannot claim easement by prescription or easement of necessity.

This Second Appeal is directed against the decree and judgment in A.S. No. 97 of 1987 of the Sub Court, Kozhikode, which was filed against the decree and judgment in O.S. No. 608 of 1983 of the Munsiff's Court, Kozhikode. The defendant is the appellant.

2. The plaintiff's case is this : The plaint A schedule property originally belonged to Thekka Palangat tarwad, from whom the property devolved on Kayyalil Achuma. One Kunhirayan purchased the property from Kayyalil Achuma in the year 1959. He had put up a building and effected improvements. The plaintiff purchased the property in 1966 from Kunhirayan. Kunhirayan dismantled the building, which was in a dilapidated condition and put up a new one and started residing therein. The plaintiff and his predecessors in interest were using the B Schedule bund for ingress and egress to the plaint A schedule item. The properties on either side of the B schedule belongs to the defendant. The A schedule property is lying on a lower level. On the allegation that the defendant is attempting to annex a portion of the bund which is used as a pathway to his property the suit has been filed for a decree of permanent injuction.

3. The defendant contested the suit. He would contend that the plaintiff has no right over the B schedule property, as it forms part of his property. The property belonging to the defendnt is a paddy field and B schedule is the varamba in between the paddy fields. An electric post has been planted in the varamba without the consent of the defendant. The post was planted on 17-2-1983. In spite of repeated requests the defendant did not remove the post. Since the defendant has come to know that the post was planted for drawing electric line to a neighbour's house, he did not pursue further for removal of the post. He also denies the allegation that he had attempted to annex the pathway to his property. The plaintiff has access to his property through the southern pathway. The plaintiff and others filed a petition before the R.D.O., alleging that the defendant is obstructing the pathway. The plaintiff and defendant were examined and later it was agreed to provide way for the use of the complainants including the plaintiff through the paddy-field in the possession of the defendant. Thus, a new way was put up so as to gain access from the north-eastern corner of the plaint A schedule property to the public way on the north.

4. The trial Court, after taking evidence, dismissed the suit. Aggrieved by the said decre and judgment, the plaintiff filed A.S. No. 97 of 1987 before the District Court, Kozhikode as A.S. No. 120 of 1987, which was later transferred to the Sub Court, Kozhikode and renumbered as A.S. No. 97 of 1987. The learned Sub Judge set aside the decree and judgment of the trial Court and granted a decree for permanent injunction restraining the defendant from interfering with the user of the B schedule passage and also from altering the width of the passage as noted by the Commissioner in Ext. C4 plan. Aggrieved by the said decree and judgment, the defendant has preferred this Second Appeal.

5. Admittedly, the plaint A schedule property originally belonged to Thekke Palangat tarwad and by subsequent assignment it devolved on the plaintiff. The property on the northern side of the A schedule item belongs to the defendant. The plaintiff claims a right of way through B schedule property, which is part and parcel of the defendant's property. A schedule property is lying on a lower level. A commission was issued to prepare a plan of the properties belonging to the plaintiff and the defendant. Plant A schedule property is lying on the sought of the defendant's property. B schedule portion is a bund which starts from the northern road and runs towards the south and ends in the A schedule. According to the plaintiff, he has been using the said pathway for his ingress and egress to the A schedule property. The plaintiff is residing in the building the A schedule item. T