Challenging the concurrent findings entered by the Principal Munsiff’s Court-I, Kozhikode in O.S.No.197/1985 followed by those of the Subordinate Judge’s Court, Kozhikode in A.S.No.69/2011, the plaintiffs in O.S.No.197/85 has come up with this second appeal.

2. This case has a checkered career. The proceedings were initiated in the year 1985, and it still continues. The suit was originally filed as one for a decree for perpetual injunction restraining the defendants and their men from obstructing the plaintiffs from using plaint B schedule pathway and from causing any obstructions on it. Later the suit was amended by incorporating the first relief as one for a declaration that the plaintiffs are having easement right by way of prescription over plaint B schedule item. Once again the plaint was amended, when the plaint B schedule pathway that was being claimed by the plaintiffs was allegedly blocked by the defendants, by incorporating a relief of mandatory injunction directing the defendants to remove the gate put up at the western side of the plaint B schedule, and also to cut and remove the trees planted in plaint B schedule item.

3. According to the plaintiffs, they were using plaint B schedule item as of right, openly and continuously, following their predecessors-in-interest of plaint A schedule property, as of right, from time immemorial. Plaint B schedule item is a pathway to have access to their house as well as the temple situated at the corner of plaint A schedule property. They have claimed that plaint B schedule item starts from the Kanoli Kanal Road situated at the eastern side of the property of the defendants and it reaches the plaint A schedule property. Plaint B schedule item is described in the plaint as a pathway leading to plaint A schedule property, having a length of 150 feet, lying east west, and a width of 6 feet lying north south. According to the plaintiffs, originally, the first defendant had purchased the property lying at the northern side of plaint B schedule pathway and subsequently she purchased the property lying at the southern side of the pathway also. Precisely, it is alleged that the first defendant or any other defendants have no manner of right or title over plaint B schedule pathway and the pathway was in existence even prior to the purchase of the northern property as well as southern property by the first defendant. According to the plaintiffs, they have perfected their right of easement by prescription over the plaint B schedule item.

4. The defendants contended that there is no such pathway as plaint B schedule item as is one claimed by the plaintiffs. It is contended that the attempt of the plaintiffs is to have a pathway through the middle of the properties of the defendants thereby cutting the properties of the defendants into two. It is further contended that no such pathway was in existence and there was no occasion for the plaintiffs to make use of the so-called plaint B schedule pathway. It has been contended that there are other pathways available to the plaintiffs to have access to plaint A schedule property. The allegation that the defendants have closed down the pathway has also been denied.

5. Initially, the Trial Court found that plaint B schedule pathway is not identifiable and mainly on that ground, dismissed O.S.No.197/85. Another suit was also tried along with the said suit. Presently, what is material is with regard to the matters covered by O.S.197/85 only and the other suit became immaterial. On the dismissal of O.S.No.197/85 as well as the other suit, plaintiffs preferred A.S.No.77/94 and A.S.No.78/94 respectively, before the lower appellate court. The lower appellate court allowed the appeals and remitted the matter to the trial court after entering a finding that plaint B Schedule pathway was identifiable. Through the remand order, the trial court was directed to decide further questions regarding the entitlement of easement right by way of prescription.

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