The plaintiff failed to prove the uninterrupted use of the pathway for 20 years as of right, openly, peaceably, and without interruption, as required for claiming easement by prescription.

K. Ramakrishnan, J.

1. The defendants in O.S.No.286/1993 on the file of the Munsiff Court, Wadakanchery are the appellants in S.A.No.622/99, while the plaintiff in O.S.No.285/93 on the file of the same court is the appellant in S.A.No.670/99. O.S.No.285/93 was filed by the appellant herein in S.A.No.670/1999 originally as O.S.605/88 on the file of the Munsiff Court, Chavakkad for permanent prohibitory injunction restraining the defendant who was the original respondent in that appeal in that case from trespassing into the plaint schedule property and cutting open a pathway through the plaint schedule property with following allegations:

The plaint schedule property belongs to the plaintiff in that case which she obtained as per partition deed No.1148/82. She was in exclusive possession and enjoyment of the same. The defendant is having property on the west of the plaint schedule property and she is residing there. The property of the defendant and those properties on the north of defendant's property were under the possession of same person and was lying contiguously till the Alumpady - Muthuvattur road. The defendant has got a way towards west of his property so as to reach the Alumpady- Muthuvattur road and he was using that road for his entry and exist to his property. The distance from his property to that road is only 25 meters. Plaint schedule items No.1 was formerly an agricultural land which was gradually reclaimed and made into a paramba. The plaintiff planted some coconut saplings and constructed a house in that property. The defendant on stray occasion, with the permission of the plaintiff used to pass through the plaint schedule property. The property on the east of the plaint schedule was usually being cultivated with blackgram by the plaintiff. None had objected to the aforesaid mode of enjoyment of the property by the plaintiff. The northern portion of the property is used as courtyard and there is a thodu on the east of item No.1. The defendant's property situated on higher level of 4 feet from the property of the plaintiff. Recently he had developed some animosity towards the family members of the plaintiff and he filed O.S.No.502/88 before the Munsiff Court, Chavakad, (which was later transferred to Munsiff Court, Wadakkanchery and renumbered as OS.No.286/1993) alleging a right of way through the plaint schedule property. There was no such way in existence. After obtaining interim injunction, he was trying to trespass into the plaint schedule property and attempting to create a pathway. The same was timely resisted by the husband of the plaintiff and the defendant and his people left the place. So she apprehended that he was likely to repeat the same. So she filed the above suit for injunction restraining the defendant and his men from trespassing into the plaint schedule property and creating a pathway through the plaint schedule property.

2. The defendant entered appearance and filed written statement contending as follows:

The suit is not maintainable and it was filed without any bona fides. The partition deed mentioned in the plaint is admitted but certain other people apart from the plaintiff are having right over the property. Those facts were suppressed in the plaint with ulterior motive. The property on the west of the plaint schedule was purchased by the defendant as per document No.469/70 from one Bhaskaran and others. Ever since the purchase of the property he is residing there with his family. At the time of purchase, the property of the plaintiff and the defendant were lying contiguously. In the plaint schedule property, there was a pathway having a width of 3 meter and length of 150 meters which was in existence for more than 100 years and it extended from the property of the defendant to Chavakkad-Kunnamkulam road, crossing through the property of the plaintiff, Kalikutty Amma, Devaki Amma and Lakshmi Amma. There was a public tank on the north of the way. It was a motorable road which is