JUDGMENT :

K. BABU, J.

1. The judgment dated 11.6.2014 in A.S. No. 15 of 2009 on the file of the Subordinate Judge’s Court, Ottappalam is under challenge in this appeal. A.S. No. 15 of 2009 arose from the judgment of the Munsiff-Magistrate Court, Pattambi in O.S. No. 143 of 2006.

2. The defendants are the appellants. The plaintiff is the respondent.

3. Material facts relevant for the adjudication of this appeal are narrated below:

3.1. The plaintiff instituted the original suit for a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property and causing any disturbance to the peaceful enjoyment of the same. The plaintiff is the owner in possession of the plaint ‘A’ schedule property. He acquired title over this property as per Ext.A1 assignment deed. The plaint ‘B’ schedule property was kept in common as per the partition deed of 1946 (Ext.A4). The properties were divided in 1973 under Ext.A3 partition deed among the plaintiff’s father Sri. Kurian, Sri. Cheru and Sri. Simon. Sri. Simon and Sri. Cheru assigned the properties to Smt. Annie, Sri. David and Sri. Geever. The ‘B’ schedule way has been formed exclusively for the use of Sri. Cheru, Sri. Simon and Sri. Kurian and thereafter their assignees. The ‘B’ schedule way came into existence as per Ext.A2 partition deed of the year 1973. This way starts from the southern public road, runs towards the north and ends in the ‘A’ schedule property. The defendants own property on the east of the ‘B’ schedule way. A laterite wall is on the eastern side of ‘B’ schedule way, separating the same from the defendants’ properties. The defendants have also put up a barbed fence on the western side. They have got entrance to their property through the northern way. The defendants have no right over the ‘B’ schedule way. Recently, they cut and removed the barbed fence on the western side of their property to enter into the ‘B’ schedule way. The father of the plaintiff obstructed the defendants. The plaintiff apprehends trespass on the part of the defendants on the plaint ‘B’ schedule property.

3.2. The defendants resisted the suit contending that the description of the plaint schedule properties is erroneous. The defendants acquired the property on the east of ‘B’ schedule way as per Ext.A3 partition deed. The ‘B’ schedule way was available for their use even when Ext.A3 partition deed was executed. The defendants have been using ‘B’ schedule way openly, peacefully and as of right. This way has been in existence even prior to 1973. The ‘B’ schedule property is a public way. The people who own property on either side use it for ingress and egress to their properties. The plaintiff made an attempt to put up a gate to obstruct the user of plaint ‘B’ schedule way by the defendants. Therefore, the plaintiff has no right to get the reliefs sought.

4. During the trial, PWs. 1 and 2 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DWs. 1 to 3 were examined and Exts.B1 to B11 were marked on the side of the defendants. Exts.C1 & C2 were marked as Court exhibits.

5. The Trial Court decreed the suit, holding that the plaintiff is entitled to the permanent prohibitory injunction.

6. The defendants challenged the judgment and decree before the First Appellate Court in A.S. No. 15 of 2009. The First Appellate Court confirmed the judgment and decree. Accordingly, the defendants are in appeal under Section 100 of the Code of Civil Procedure.

7. After hearing both sides, this Court re-formulated the substantial questions of law as follows:

(1) Have the Courts below misconstrued the evidence while holding that the defendants failed to establish right over ‘B’ schedule way?

(2) Have the Courts below drawn necessary inferences and presumptions that would apply on the facts of this case?

8. Heard both sides.

9. The plaintiff’s case is that he is the owner in possession of ‘A’ schedule property. According to the plaintiff, ‘B’ schedule way was kept in com