Point of Law: Persons, including adjacent property owners, walking hither and thither along an open property would not accrue any right by such walking so long as such usage is without any right.

JUDGMENT :

Defendant No.1 in O.S.No.57/2010 on the file of the Principal Munsiff's Court, Neyyattinkara, is the appellant. The plaintiff is the respondent.

2. The plaintiff instituted the original suit for a declaration that he has title and possession over 'C' schedule property and for a permanent prohibitory injunction to restrain the defendants from trespassing upon the property.

3. In 2004, the plaintiff acquired 20 cents of land in Re.Sy.No.238/3 of Vellarada Village. He sold out 7 cents of land from this 20 cents to defendant No.3. The remaining 13 cents is in the ownership and possession of the plaintiff. This 20 cents of land is described as 'A' schedule in the plaint . The 7 cents of land alienated to defendant No.3 is described as 'B' schedule. The remaining 13 cents is described in the plaint as 'C' schedule property. The plaintiff pleaded that the eastern boundary of 'C' schedule property is a row of stones. Plaint 'B' schedule property is located at a distance of 1.5 metres towards the west of the above said row of stones. Defendant Nos. 1 to 3 are residents in the properties situated on the north and south of plaint 'C' schedule property. Defendants access Kiliyoor-Kallimoodu public road through different ways. Defendants made an attempt to demolish the barbed wire fencing erected on the north boundary on the plaint 'C' schedule property and cut open a way through it.

4. Defendants resisted the suit, contending that there exists a 4 feet wide way having an approximate length of 145 metres through the northern and eastern sides of plaint 'C' schedule property, from Kiliyoor road up to the bund of the water channel on the west of plaint 'C' schedule property. According to the defendants, this way has been used by the local people to bring cattle to the water channel and transport manure to the wetland for 35 years. The attempt of the plaintiff is to convert the plaint 'C' schedule property and the adjoining properties into a single plot and close the way.

5. During the trial, PW1 was examined and Exts.A1 to A3 were marked on the side of the plaintiff. On the side of the defendants, DWs 1 and 2 were examined. Exts.C1 to C3 series were marked as Court Exhibits.

6. The Trial Court decreed the suit, declaring that the plaintiff has title and possession over plaint 'C' schedule property and restrained the defendants by way of permanent prohibitory injunction from trespassing into the plaint 'C' schedule property, from cutting open a new way to 'C' schedule property, and from committing any acts of waste in the plaint schedule properties. The Court also allowed the plaintiff to restore the iron barbed wire fencing on the northern side of the plaint 'C' schedule property. Defendant No.1 challenged the decree and judgment of the Trial Court in A.S.No.165/2016 before the First Appellate Court. As per judgment dated 14.07.2016, the First Appellate Court confirmed the judgment and decree of the Trial court.

7. Defendant No.1 is in appeal before this Court invoking Section 100 of CPC.

8. After hearing both sides, this Court reformulated the substantial question of law as follows:-

“Having found the indications of the existence of a way through the 'C' schedule property, were the Courts below justified in granting the decree of prohibitory injunction in respect of the entire 'C' schedule property without resorting to the doctrine of lost grant?”

9. Heard Sri.R.Gopan, the learned counsel appearing for the appellant/defendant No.1 and Smt.K.P. Santhi, the learned counsel appearing for the respondent/plaintiff.

10. The plaint 'A' schedule property is 20 cents of land in Re.Sy.No.238/3 in Vellarada Village. The plaintiff acquired title and possession over the property by virtue of Ext.A1, sale deed. He alienated the plaint 'B' schedule property to defendant No.3 by virtue of Ext.A2, sale deed. The remaining property has an extent of 13 cents ('C' schedule), which is the subject matter in this case. There is no challenge to the right, title a