First appellate court's perverse denial of pathway existence and prescriptive easement set aside; trial decree restored on unimpeachable commissioners' reports, witness evidence proving 50+ years' open continuous use.

JUDGMENT :

EASWARAN S., J.

These appeals arise from a common judgment and decree in A.S.Nos.107/2005 and 108/2005 on the files of Additional Sub Court, Irinjalakuda, which reversed the judgment and decree in O.S.Nos.1301/2003 and 289/2004 of the Munsiff Court, Kodungallur and granted a decree of injunction in favour of the plaintiff in O.S.No.289/2004.

2. Since the facts are common in both the appeals, the facts leading to the filing of R.S.A.No.648/2011 will be discussed in this judgment. The appellant/plaintiff sued the defendants in a suit for declaration and injunction. Plaintiff is the owner of plaint A schedule property. Plaint B schedule property is lying on the immediate northern side of plaint A schedule property and it belongs to the 1^st defendant – Devaki Amma, who later assigned the property in favour of the 2^nd defendant pending the suit. The 3^rd defendant and additional 4^th defendant are brothers of the 2^nd defendant and are said to be managing the property as the 2^nd defendant was abroad. The access from plaint A schedule property to the panchayath road is through a pathway, which lies through plaint B schedule property, which is scheduled as plaint C schedule. The pathway is having a width of 3 feet and a length of 35 metres. The C schedule pathway has been in use by the plaintiff and her predecessors-in-interest for more than 50 years and hence, the plaintiff is entitled to get easement by prescription. On 03.12.2003, an attempt was made by the 1^st defendant to block the way and hence, the suit was filed.

3. The 1^st defendant resisted the suit and contended that there is no pathway described as plaint C schedule. On 13.01.2004, the 1^st defendant sold the property to the 2^nd defendant, and the additional 4^th defendant was impleaded, since he was managing the property as the 2^nd defendant was abroad. Defendants 2 and 4 filed a written statement contending that, they have purchased the property through Sale Deed No.161/2004 of S.R.O. Mathilakam. The existence of a way was denied by the defendants. Subsequent to the filing of the suit, the 4th defendant filed O.S.No.289/2004 seeking for an injunction restraining the plaintiff in O.S.No.1301/2003, who is the appellant herein, from trespassing into the plaint B schedule property, through which the C schedule pathway lies.

4. Both the suits were tried together. On behalf of the plaintiff in O.S.No.1301/2003 (1st defendant in O.S.No.289/2004), Exts.A1 and A2 documents were produced and PW1 to PW3 were examined. On behalf of the defendants in O.S.No.1301/2003, Exts.B1 to B3 documents were produced and DW1 to DW6 were examined. Exts.C1 to C3(a) consists of reports and rough plans submitted by the Advocate Commissioners. CW1 and CW2 are the Advocate Commissioners who inspected the property.

5. The Advocate Commissioner appointed by the trial court at the first instance had inspected the property and filed Ext.C1 report and Ext.C1(a) rough plan, finding the existence of C schedule pathway and accordingly, an order of injunction was granted. Later, there was an attempt to close down the pathway in question by the defendants and hence, an application for prosecution was filed and in which, the same Advocate Commissioner was again asked to inspect the property and he filed Ext.C2 report and Ext.C2(a) plan, clearly indicating the fact that there was an attempt by the defendants 2 to 4 to forcefully close down the C schedule pathway. Late