The plaintiff must provide sufficient evidence to establish the use of a specific width of way for the statutory period required to acquire a prescriptive easement right.

JUDGMENT :

This Regular Second Appeal is by the defendant in a suit for prohibitory injunction against obstruction of a way described in the plaint 'C' schedule. The plaintiff claimed prescriptive easement right over the way. The suit, though dismissed by the trial court, was decreed in appeal.

2. The plaint 'A' and 'B' schedule properties belong to the plaintiff. Plaint 'C' schedule is the way over which prescriptive right is claimed. It is described as having a width of 2.75 metres situated in the property of the defendant.

3. One Kelappa Panicker and his wife Kallyani, had three sons viz, Bhanu Panicker-the plaintiff, Kunhiraman Panicker and Balan Panicker-the father of the defendant. A larger extent of property including the plaint schedule properties originally belonged to Kelappa Panicker. In the year 1961, he conveyed the properties to his wife and children as per Settlement Deed No.274/1961. In the year 1976, the mother and children executed Ext.A1 Partition Deed. Under Ext.A1 partition, the plaint 'A' schedule property was allotted to the share of the mother, the plaint 'B' schedule which lies on the south of the plaint 'A' schedule, along with properties on the east and west of the plaint 'A' schedule were allotted to Kunhiraman. The property situated to its east was allotted to the defendant's father Balan Panicker. The property situated on the northern side of plaint 'A' schedule was allotted to the plaintiff. On the eastern side of the entire property, that is, on the eastern side of the property allotted to the defendant's father Balan Panicker, is situated in a public road which lies in north-south direction. The family house of the parties were situated in the plaint 'A' schedule property. They were having access to the public road towards the east. On the death of the mother, the legal heirs Kelappa Panicker, Kunjiraman and Balan Panicker released their rights over the plaint ‘A’ schedule property in favour of the plaintiff under Exts. A2 to A4 documents. In Ext.A4, Kunjiraman Panicker conveyed the plaint ‘B’ schedule property also to the plaintiff. Subsequently, Balan Panicker conveyed 20 cents, which takes in the plaint 'C' schedule, in favour of his son, the defendant. Alleging that, though the plaintiff has a prescriptive right of way over the plaint 'C' schedule the defendant is attempting to obstruct the same, the suit has been filed.

4. The defendant admitted the derivation of title of the properties and also the lie of the properties. He also admitted that the access to the eastern public road was through the property obtained by his father, which was subsequently conveyed to him. But according to him, the access was only a pedestrian access and not a motorable way as claimed by the plaintiff. He would contend that the property allotted to his father was a “nilam”, described in Ext.A1 partition as “OTHER LANGUAGE”. The means to access to the eastern public road was through a “varamba”/ridge through the “nilam”. Since the “nilam” was not fit for paddy cultivation, it was gradually raised for planting of coconut, arecanut etc. The defendant's father had converted the property as a “paramba”/garden land. The access to the eastern public road was always through the 75 centimetre width “varamba”/ridge and was only a footpath. A motorable way as claimed by the plaintiff was never in existence. Four years prior to the date of suit, the plaintiff's family bought a Maruti car. At that time on the request of the plaintiff, as an interim arrangement, the plaintiff was permitted to take the car to the plaint 'A' schedule property through the property of the defendant. The permission was granted only as a temporary arrangement. The plaintiff is not entitled for prescriptive right over the plaint 'C' schedule way. Contending thus, he prayed for dismissal of the suit.

5. Heard learned counsel Sri.Manu George Kuruvila on behalf of the appellant-defendant and Sri.G.S.Reghunath, the learned counsel for the respondent-plainti