Establishment of easement rights requires explicit documentation, and mere permissive rights do not confer legal easements; plaintiffs failed to prove their claim.

JUDGMENT :

Easwaran S., J.

The defendants aggrieved by a decree of injunction restraining them from obstructing the plaintiffs' right of easement have come up in this second appeal challenging the concurrent findings rendered by the Principal Munsiff's Court, Ernakulam in OS No.232/2014 and confirmed by the II Additional Sub Court, Ernakulam in AS No.30/2017 .

2. The brief facts necessary for the disposal of the appeal are as follows:

Plaint A item No.1 scheduled property having an extent of 20 cents belongs to the 1^st plaintiff. Plaint A item No.2 property consisting of 20 cents belongs to the 2^nd plaintiff. The properties were derived by settlement deed No.414/76 dated 13.2.1976 of SRO, Ernakulam. 1.25 Acres of land towards the North and Eastern sides of plaint A item Nos.1 and 2 belong to the brother of the plaintiffs, one Vincent. The properties were given to Vincent by the father of the plaintiffs by document No.1875/68 of SRO, Ernakulam dated 30.8.1968. When the aforesaid property was settled in favour of Vincent, it was made clear that a pathway having a width of 8 links will be provided to access the property stated as A schedule to the plaint. It is contended that after setting apart the 8 links wide pathway, the balance property alone is vested with Vincent. Later, it was mutually agreed that certain portions of the property from item Nos.1 & 2 of A schedule will also be set apart for widening of the existing pathway by consent deed dated 9.2.2008. It is contended that contrary to the said consent deed, the 1^st defendant, after setting apart the property scheduled as B schedule to the plaint, has constructed a compound wall. Thereafter, he constructed a compound wall on the Eastern and Western sides of his property. The land which is set apart to be used as the way by the 1^st defendant is after recognising the wish of his father as per the deed No.1875/68. While so, there was an attempt by the defendants to demolish the compound wall towards the Southern end and annex B schedule way into their own property. Accordingly, stating the cause of action arisen on 20.2.2014, the suit was instituted. During the pendency of the suit, an amendment was sought to amend the B schedule pathway having an extent of 19 metres in length and 3 metres in width, which was allowed. The defendants entered appearance and resisted the suit denying the right of the plaintiffs, contending that there existed no pathway having an extent of 2.13 metres width, equivalent to 7 feet. The execution of the consent deed dated 9.2.2008 was also denied. The existence of the B schedule pathway being used by the plaintiffs to enter into the Chammany Road in order to access the Chittoor-Cheranalloor Road was denied by the defendants. Equally so, the claim for easement by prescription was also denied. The claim for easement by grant was also questioned as no evidence was produced by the plaintiffs to show that there existed a pathway as claimed by them. Defendants further contended that it is not a compound wall constructed but a temporary embankment like much within their property, to temporarily avoid building material being washed off by ingress of river water. On behalf of the plaintiffs, Exts.A1 to A5 documents were produced and PW1 to PW6 were examined. On behalf of the defendants, Exts.B1 to B5 documents were produced and DW1 was examined. Exts.X1 to X2 are third-party exhibits. Exts.C1 & C2 are the advocate commissioner’s report and the sketch. The trial court on the basis of the pleadings of both parties, framed the following issues:

“1. Whether plaint B schedule pathway is in existence?

2. Whether plaintiffs acquired right of easement as claimed to us