The main legal point established in the judgment is that the plaintiffs were entitled to a decree of perpetual injunction in respect of the property covered by Ext.A2 sale deed, as shown in Ext.C2(a) plan, based on the evidence and documents presented.

Challenging the concurrent findings entered by the Munsiff's Court, Aluva in O.S. No.523/2007 followed by those of the Additional District Court, North Paravur in A.S. No.245/2009, plaintiffs in the suit has come up in Second Appeal.

2. The suit is one for perpetual injunction restraining the defendants and their men from entering into plaint B schedule property, from taking vehicles through plaint B schedule property, and from doing anything to harm the title and enjoyment of the plaintiffs over the plaint B schedule property. The case of the plaintiffs is that plaint A schedule property belongs to the plaintiffs, which devolved on them through intestate succession on account of the death of the husband of the 1st plaintiff, and the father of the other plaintiffs. According to the plaintiffs, the plaint A schedule property originally devolved on late Kunju Muhammed through Ext.A1 document of the year 1958. It is the claim of the plaintiffs that there was a pathway, which belong to Kunju Muhammed having a width of 1= kols lying east west. Thereafter, through Ext.A2 sale deed No. 4906/1979, Kunju Muhammed purchased a portion of the property having a length of 11 dhandu and having a width of 8= feet. The plaintiffs have scheduled B schedule in the plaint as the said portion purchased through Ext.A2 as well as the earlier pathway mentioned in Ext.A1. According to the plaintiffs, the defendants attempted to take vehicles through the plaint B schedule property on 21.11.2007, and hence the suit.

3. The 1st defendant alone contested the suit by filing a written statement. It has been contended that plaint B schedule is one obtained by way of easement by grant to the 1st defendant and his predecessors-in-interest of his property. Over and above it, through dedication, the property owners on either side of the pathway gave properties for increasing the width of the pathway, whereby its width has been increased to 10 feet. According to the 1st defendant, he is not a party to Ext.A2 document and, therefore, the said document is not binding on him. If at all Ext.A2 is found to be genuine, the same also forms part of the pathway and the same was being used by the 1st defendant and his predecessors-in-interest, from the date of execution of Ext.A2 onwards. It has also been contended that the 1st defendant has right to take vehicles through the plaint B schedule property and the plaintiffs have no manner of right to obstruct the same.

4. On the side of the plaintiffs, the 2nd plaintiff was examined as PW1, and Exts.A1 and A2 were marked. None of the defendants has cared to mount the Box. At the same time, Exts.B1 to B4 were marked. Ext.C1 series and Ext.C2 series were also marked. The trial court found that the plaint B schedule property is lying as a pathway and, therefore, a decree of perpetual injunction as sought for cannot be granted. The suit was dismissed. Aggrieved by the dismissal, the plaintiffs as appellants preferred A.S. No.245/2009. The lower appellate court, without much discussions, concurred with the findings entered by the trial court and dismissed the appeal.

5. This Court admitted the Second Appeal on the following substantial questions of law:-

"(i) Is the court below right in law in refusing relief to the appellants for the reason that the plea of grant has not been properly pleaded or proved by the defendants?

(ii) What is the effect of non-examination of any of the defendants in a case where the onus to prove the nature of grant is on the defendants? Shall not the court draw adverse inference against the defendants in view of the decision reported in AIR 1999 SC 1441 and as per Sec.144 of the Evidence Act?

(iii) Are the courts below right in law in refusing relief to the appellants especially in view of the fact that the property in dispute has been properly identified as per title deeds of the appellants and the defendants has omitted to prove their plea of grant as well as public way in their favour ?

(iv) Are the