"C.R."

1. Plaintiff in a suit for injunction is the appellant. A decree as canvassed by the plaintiff in his suit was granted by the trial court. But, in appeal preferred by the defendants, the decree of the trial court was reversed and the plaintiff was non-suited. Aggrieved by the decision so rendered by the lower appellate court, the plaintiff has preferred this appeal.

2. Plaint schedule properties, two items, are purchased by the plaintiff and his brother respectively under Exts.A1 and A2 sale deeds. Admittedly, both these properties are lying contiguously as a single plot. Prior to the purchase of the above land under Exts.A1 and A2 by the plaintiff and his brother, the defendants have obtained right, title and possession over the properties situate to the east of both the above items and also to the west of plaint item No.2. Plaintiff laid the suit for a decree of perpetual prohibitory injunction against the defendants alleging threat of trespass from them over a portion of plaint item No.2 property over its southern side to cut open a pathway for having a direct access from their property on the eastern side of the plaint items to their property situate on the western side of item No.2. A decree for perpetual prohibitory injunction was, therefore, applied for against the defendants to restrain them from trespassing upon or cutting open any pathway through the plaint property.

3. The defendants resisted the suit contending that previously a pathway was in existence on the northern side of plaint item No.1 property and that was surrendered by them to the plaintiffs on the basis of an agreement (Ext.B4) entered with the brother of the plaintiff by which a new way was provided through the southern side of plaint item No.2 property to the defendants for having access from their eastern property to the west of item No.2. It was the further case of the defendants that, previously, the properties covered by Exts.A1 and A2 sale deeds conveyed to the plaintiffs and that of the defendants situate to the east of the plaint properties and west of item No.2 property, and also the northern property of the plaint properties belonged to common title holders, Kizhakkethil Karappan and Narayanan, from whom, both, the plaintiff and his brother, and the defendants, purchased their respective properties. When the plaintiff purchased the properties to the north of the plaint property, a demand for surrender of the existing pathway was made to have enjoyment of items 1 and 2 properties as a compact plot and, thereupon, on the basis of the mutual agreement, as reflected in Ext.B4 document, surrender of the existing pathway was made on providing an alternate way through the southern portion of item No.2 property, according to the defendants.

4. Though the plaintiff disputed the genuineness of Ext.B4 agreement, which was stated to have been entered by his brother with the defendants, contending it as a fraudulent document, the trial court, on the basis of the materials tendered in the case, concluded that the agreement is true and genuine. However, the case of the defendants, with respect to the surrender of the pathway on the northern side of the plaint property and carving out a new pathway on such surrender, through the southern extremities of item No.2 property, was found not acceptable to the trial court, since it was of the view that the defendants had no consistent case with respect to the way which existed earlier. The first appellate court, after re-appreciation of the evidence, having regard to the fact that the suit was one for perpetual prohibitory injunction, wherein the plaintiff sought for such discretionary relief, taking the view that the inconsistent stand taken by the defendants over the location of the way which was claimed as existing but surrendered for the alternate way could not be given any consequence where the entitlement of the plaintiff for the relief is found to be meritless by the materials tendered in t