K. RAMAKRISHNAN, J.

1. The petitioner/appellant in I.A. No. 920/2015 in A.S. No. 29/2011 of Sub Court, Sulthan Bathery has filed this petition challenging the order passed in that application under Article 227 of the Constitution of India.

2. The petitioner herein filed Ext.P1 suit as O.S. No. 156/2010 on the file of the Munsiff Court, Kalpetta against the respondents for permanent prohibitory injunction restraining the defendants, their men and agents from trespassing into plaint-B schedule road and causing any damage or making any alteration to the present nature and condition of the road and from making any obstruction or interference in any manner over the plaintiff’s right and user of the plaint B schedule road. It is alleged in Ext.P1 that plaint A schedule property belongs to the plaintiff as per Sale Deed No. 784/2007 of SRO Vythiri. Originally it belonged to one Pulikkal Pathumma by virture of Lease Deed No. 237/1958 and thereafter it was devolved on Aandassery Karthiyani on the basis of Sale Deed No. 1450/1966. The said Kathiyani transferred the property to one Venugopalan, Pankajakshy and Paru Amma as per Document No. 1242/1970. While so, Paru Amma died and her right devolved on Venugopalan. The said Venugopalan transferred a portion of the property to his son Gireesh Kumar as per Sale Deed No. 1215/2001 and thereafter Venugopalan, Pankajakshy and Gireesh Kumar jointly executed Sale Deed No. 784/2007 in respect of the plaint A schedule property in favour of the petitioner and thereby he became the absolute owner of A schedule property. Plaint B schedule property is a mud road beginning from Lakkidi Rest House Public Road and proceeding through the PWD property and reaches plaint A schedule property. It is having a width of 4.5 meters and length of 75 meters. Except this road, there is no other access to the plaint A schedule property. According to the petitioner, it has been in open, peaceful, express and uninterrupted use as of right by way of easement for more than 30 years from 1966 to 1996, thereby the plaintiff’s predecessor acquired a right to use plaint B schedule road by way of easement by prescription. Thereafter the plaintiff purchased the plaint A schedule property and he has been using the same openly, peacefully and uninterruptedly as of right as easement to reach plaint A schedule property. Plaint B schedule property is entering plaint A schedule property at its south eastern corner and thereafter the road proceeds through the southern side of the property and leads to the residential house therein. When the second defendant tired to obstruct the same, the plaintiff filed W.P. (C) No. 14330/2010 before this court and this court disposed of the same leaving open the right of the petitioner to approach the civil court for necessary reliefs. It was how Ext.P1 suit was filed.

3. The defendants entered appearance and filed written statement denying the right of the plaintiff to use plaint B schedule property and also the claim made by the plaintiff through the alleged plaint B schedule road. According to them, there was no such pathway in existence as claimed by the plaintiff and it was created after the plaintiff purchased the property and when it was obstructed, the present suit has been field with an ulterior motive. They prayed for dismissal of the suit. A commission was taken out and the commissioner filed the report with sketch plan.

4. PWs. 1 to 3 were examined and Exts.A1 to A6 were marked on the side of the plaintiff. Dws1 and 2 were examined and Exts.B1 to B4 were marked on the side of the respondents and Exts.C1 and C2 were also marked. After considering the evidence on record, the trial court found that the plaintiff has failed to prove the identity of plaint B schedule road and also found that necessary ingredients to get the relief of easement by prescription has not been established and dismissed the suit by judgment dated 29.1.2011. Thereafter the petitioner filed A.S. No. 29/2011 befo