IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 21^ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946 RSA NO. 51 OF 2024 AGAINST THE JUDGMENT AND DECREE DATED 24.02.2023 IN A.S.NO.12 OF 2020 OF SUB COURT, VATAKARA ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.01.2020 IN O.S.NO.223 OF 2015 OF MUNSIFF COURT, NADAPURAM APPELLANTS/APPELLANTS/DEFENDANTS:

1 VARIYAM KUNNUMMAL ANEESAN AGED 40 YEARS S/O.KUMARAN, KACHERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673005

2 VARIAYAM KUNNUMMAL PRASAD AGED 40 YEARS S/O.KUMARAN, KACHERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673005 BY ADV.ZUBAIR PULIKKOOL RESPONDENT/RESPONDENT/PLAINTIFF:

ARIYARA MEETHAL KUMARAN AGED 68 YEARS S/O.CHEKKOTTI, RESIDING AT ELAMTHOTTATHIL HOUSE, KACHERI AMSOM DESOM, EDACHERI NORTH POST, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673502 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON

21.03.2024, THE COURT ON 21.5.2024 DELIVERED THE FOLLOWING:

CR

JUDGMENT

Dated this the 21^st day of May, 2024 This Regular Second Appeal has been filed under Section

100 r/w Order XLII Rule 2 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S.No.12/2020, dated 24.2.2023 on the files of the Sub Court, Vatakara, arose out of the decree and judgment in O.S.No.223/2015, 31.1.2020 on the files of the Munsiff Court, Nadapuram. The appellants herein are the defendants in the suit.

2. Heard the learned counsel for the appellants on admission. Perused the trial court records.

3. I shall refer the parties in this appeal as ‘plaintiff’

and ‘defendants’ for convenience.

4. The suit was filed by the plaintiff, seeking the relief of mandatory as well as consequential prohibitory injunction. According to the plaintiff, when plaint schedule properties were severed, there arose a necessity to provide a way towards plaint A schedule property. Accordingly, a way through plaint C schedule property was provided through the extreme south side of plaint C schedule property lying in east- west direction starts from south-east corner of the plaint A schedule property on the west and reaches the mud road on the east. The eastern boundary of the plaint C and F schedule properties is a mud road. According to the plaintiff, plaint B schedule is the way so provided. But the defendants, on 15.9.2015, obstructed B schedule pathway, which necessitated the suit.

5. The defendants entered appearance and denied the severance of tenements. According to the defendants, no way as plaint B schedule available at any point of time and the way for ingress and egress to the plaint A schedule property is a public road from the south which passes through the western fringe of the plaint A schedule property.

6. Trial court ventured the matter and recorded evidence. PW1 and PW2 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. DW1 was examined on the side of the defendants. Exts.C1 to C4 were marked as court exhibits.

7. The trial court addressed claim of easement by necessity in terms of Section 13 of the Indian Easements Act, 1882 (for short, ‘the Act, 1882’ hereinafter) and found the contention of the plaintiff in his favour and accordingly, decree was granted as under:

“In the result, the suit is decreed as follows:-

1. The defendants are directed by way of mandatory injunction to set out a pathway having 3 feet width to the plaintiff through the southern boundary of the plaint C schedule property, that also in the route pointed out by the commissioner in Exts.C1 and C2 plan and report.

2. The plaintiff is permitted to set out a way as stated above with the aid of the court in case the defendants are not inclined to set out a way as ordered by this court.

3. The defendants are restrained by a permanent prohibitory injunction from obstructing the plaintiff from using the said 3 feet width pathway for ingress and egress to Plaint A schedule property.

4. Exts.C1 to C4 shall form part of th