A grant of easement by way of a pathway created by a property owner prior to the execution of a will is not extinguished by subsequent transactions or non-use of the pathway.

1. This Second appeal has been preferred by the appellants in A.S.130/2002 on the file of the Subordinate Judge, Thalassery against the judgment and decree dated 24.6.2006 dismissing the above appeal. The appellants are the plaintiffs in O.S.No.142 of 1996 on the file of the Munsiff's court, Kuthuparamba and the respondents are the defendants.

2. The plaintiffs are husband and wife. They filed the suit for injunction against two siblings of the second plaintiff, alleging that the defendants are attempting to trespass into the plaint schedule property and also trying to construct a new road through the eastern side of the plaint schedule property. According to the defendants, their mother Narayani executed Ext.B1 will bequeathing her landed property in favour of her children and in that will she had provided a pathway having a width of 15 links starting from the southern road, along the eastern side of the plaint schedule property, leading towards the properties of defendants 1 and 2. Further according to them, the plaintiffs filed the suit with the intention to interfere with their above right of way and that after obtaining an ex parte interim injunction, they have blocked the pathway. The trial court, after considering the available evidence, found that there is merit in the contention of the defendants that there is a pathway as claimed by them, that the said pathway was blocked by the plaintiff's and that the plaintiff's have not proved the cause of action. Therefore, the trial court dismissed the suit and the same was upheld by the 1st Appellate Court.

3. At the time of admission, this Court has formulated the following substantial questions of law :

(i) What is the effect of the transaction evidenced by Exts.A1 and B2 to B5 on Ext.B1 ?

(ii) Have the courts below acted in accordance with law in the matter of appreciating evidence on record ?

4. Both sides were heard in detail, on the above substantial questions of law.

5. It was argued by the learned counsel for the plaintiffs that, though as per Ext.A1 will, the mother had created a pathway as claimed by the defendants, subsequently she had executed Ext.A1 settlement deed in favour of 2nd plaintiff, in which a portion of the above pathway was also assigned to him. It was contended that, the mother assigned a portion of the above pathway also in his favour, as she did not want to retain the said pathway. It was further contended that, even if there is any such way, it can only be towards further east of the plaintiff's property and not through it.

6. As per Ext.B1 will dated 16.11.1988, Narayani had bequeathed 17.16 cents from the south-western portion of her entire property as B schedule to the 2nd plaintiff. Another 34.50 cents from the north eastern side as A schedule and 2 cents from the southern road side as A1 schedule was bequeathed in favour the 2nd defendant Padmini. An extent of 18.40 cents from the south-eastern portion as C schedule was bequeathed in favour of another daughter Vimala.

17 cents already settled in favour of the 1st defendant as per Ext.B2 from the north western side was shown in the sketch attached to Ext.B1 as D schedule. In between A, B, C and D schedules, an extent of 2.85 cents having a width of 15 links starting from the southern public road along the east of B schedule and west of C schedule and leading up to the south eastern corner of D schedule was set apart as E schedule pathway for the use of her children. The problem arose when thereafter, as per Ext.A1 settlement deed dated 1.3.1993, mother had settled 18.5 cents including the above 17.16 cents and a portion of the E schedule pathway in the will, to 2nd plaintiff.

7. The side measurements of A schedule to Ext.B1 are 121 links on north, 129 links on south, 151 links on east and 140 links on west. However, in Ext.A1, the side measurements are shown as 121 links on north, 145 links on south, 156 links on east and 140 on the west. In Ext.A1, the extent is also increased to 18.50 cents,