JUDGMENT

This Regular Second Appeal has been directed against the judgment and decree in A.S.No.34/2014 on the file of Subordinate Judge's Court, Ernakulam, which arose out of judgment and decree in O.S.No.85/2011 on the file of First Additional Munsiff's Court, Ernakulam.

2. Appellant is the defendant in O.S.No.275/2009. (The parties would hereinafter be referred as per their status before the trial court).

3. The suit was one for declaration, permanent prohibitory injunction and mandatory injunction. Plaint 'A' schedule property is jointly owned by the plaintiff and her husband and is having an extent of 4.20 Ares. Defendant is the owner of plaint 'B' schedule property which is situated on the southern side of plaint 'A' schedule property. A 14 links wide pathway has been provided from plaint 'A' schedule property upto the public road for ingress and egress towards east which is described as plaint 'C' schedule pathway. The predecessor in interest of the plaintiff have also been using plaint 'C' schedule pathway openly and without any interruption. There was a thondu on the eastern side of plaint 'A' schedule property which starts from plaint 'C' schedule pathway and runs towards plaint 'B' schedule property. Rain water and other excess water falling on plaint 'A' schedule property has been flowing towards the thondu from time immemorial. The defendant subsequently converted the said thondu to a 5 links width way into plaint 'B' schedule property and it is described as plaint 'D' schedule property. Plaintiff claimed right of easement for free flow of natural and excess water from plaint 'A' schedule property through plaint 'D' schedule property. Defendant purchased 1.5 cents of property on the eastern side of plaint 'B' schedule property for exclusive use for ingress and egress to his property. But defendant demanded part of purchase price which was refused by the plaintiff. Thereafter, defendant threatened the plaintiff to construct compound wall on the eastern and western side of plaint 'D' schedule property and also in a portion of plaint 'C' schedule property so as to reduce the width of plaint C schedule. Defendant has no right to make any construction in plaint 'C' schedule property. Hence the suit was filed for a declaration of right to free flow of excess water falling in plaint 'A' schedule property through plaint 'D' schedule property and for a mandatory injunction directing the defendant to demolish the unauthorized construction made in plaint 'A' and 'D' schedule properties and to remove the soil filled and dumped in D schedule property and to keep D schedule property below the level of Plaint A schedule property. A permanent prohibitory injunction restraining the defendant from obstructing the free flow of water from plaint 'A' schedule property through plaint 'D'

schedule property is also sought for.

5. Defendant filed written statement contending that plaintiff has not obtained 4.20 ares of land described in plaint 'A' schedule property. According to him, the balance property after previous sale left with the predecessor in interest of the plaintiff was only 3.35 ares. Plaintiff was having only 5 links width passage to the public road towards east. The description of plaint 'B' schedule is wrong. Defendant is in possession of 9 cents of land in plaint 'A and D' schedule property which are not divisible. When the defendant bought property as per document No.1789/1994 there was a compound wall on the northern boundary and granite foundation on the western boundary of 5 links pathway. There is no 14 links width pathway as alleged in the plaint 'C' schedule property. The width of pathway on the east is only 10 links, out of which, 5 links passage belongs to the defendant and 5 links on the northern side is of the plaintiff. It is denied that the plaintiff was flowing water through plaint 'D' schedule property. The defendant has not converted the thondu to a way as alleged. The defendant never demanded part of purcha