IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM MONDAY, THE 23^RD DAY OF SEPTEMBER 2024/1ST ASWINA, 1946 RSA NO. 429 OF 2023 JUDGMENT DATED 23.02.2023 IN AS NO.237 OF 2017 OF ADDITIONAL DISTRICT COURT -V, KOTTAYAM ARISING OUT OF THE JUDGMENT DATED 15.09.2017 IN OS NO.19 OF 2015 OF MUNSIFF COURT, ETTUMANOOR APPELLANTS/APPELLANTS 1 &2/DEFENDANTS 1 & 2:

1 C.L JACOB,(TRANSPOSED)

AGED 57 YEARS, S/O LATE LUKOSE, MARYVILASAM (CHIRAYIL) HOUSE, ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, VINI JACOB, AGED 49 YEARS, W/O C.L JACOB, MARYVILASAM (CHIRAYIL) HOUSE, ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE. KOTTAYAM-683631.

(APPELLANT NO.1 IS TRANSPOSED AS RESPONDENT NO.5 AS PER ORDER DATED 20.07.2023 IN IA.4/2023), PIN - 683631

2 VINI JACOB, AGED 49 YEARS W/O C.L JACOB, MARYVILASAM (CHIRAYIL) HOUSE, ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE. KOTTAYAM, PIN – 683631 [THE NAME OF APPELLANT NO.2 IS WRONGLY SHOWN AS VIMI JACOB IN THE CAUSE TITLE IN THE PLAINT]

BY ADV VINI JACOB(Party-In-Person)

RESPONDENTS/RESPONDENTS/PLAINTIFFS:

1 VIJAYAMMA K.G., AGED 70 YEARS W/O LATE KRISHNANKUTTY NAIR, KRISHNA SADANAM HOUSE, ETTUMANOOR P.O, KIZHAKKABALAM, ETTUMANOOR VILLAGE, KOTTAYAM, PIN - 683631

2 LEELAMMA, AGED 66 YEARS, W/O LATE C.C JOSEPH, ULLAPALLIL HOUSE, ETTUMANOOR P.O, ETTUMANOOR VILLAGE, KOTTAYAM, PIN - 683631

3 LINCY, AGED 39 YEARS, W/O ROBERT ERTHUMALAYIL, PANTHATHALA VIILAGE, MUTHOLI GRAMA PANCHAYATH, MEENACHIL TALUK, KOTTAYAM,, PIN - 686573

4 JELMI,AGED 37 YEARS,W/O SABU,THANNLYIL, VETTIMUKAL,ETTUMANOOR,VILLAGE, KOTTAYAM 686631 (RESPONDENTS 2, 3 AND 4 IMPLEADED AS PER I.A. NO.2, 3 AND 4 OF 2022 IN THE COURT BELOW; BUT NOT SHOWN IN THE CAUSE TITLE OF THE JUDGMENT AND DECREE OF THE COURT BELOW)

5 C.L JACOB, AGED 57 YEARS, S/O LATE LUKOSE, MARYVILASAM (CHIRAYIL) HOUSE, ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, KOTTAYAM BY ADVS.

R1-R4 SRI.R.PARTHASARATHY R1-R4 SEEMA(K/893/2000)

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

1. Defendants 1 and 2 in a suit for declaration and permanent prohibitory injunction were the appellants. After filing of the appeal, the 1^st appellant was transposed as the 5^th respondent as per Order dated 20.07.2023 in I.A No.4/2023. Now the 2^nd defendant alone is the appellant in the appeal.

2. The plaintiffs, who are two in numbers, filed the suit for declaration of easement by prescription over the plaint schedule item No.4 way to their properties which are scheduled as plaint schedule item Nos.1 and 2 respectively in the plaint. The 1^st plaintiff derived plaint schedule item No.1 as per Ext.A1. The 2^nd plaintiff derived plaint schedule item No.2 as per Ext.A3. The plaint schedule item No.3 is the property belonged to the defendants who run a Theatre by name ‘Lotus Theatre’

therein.

3. As per the plaint allegations, the plaint schedule item No.2 is situated on the south eastern side of the plaint schedule item No.1. The defendants 1 and 2 have been conducting a theatre by name Lotus in plaint schedule item No.3 property. The property belonging to one Geetha Benjamin situated on the eastern side of the plaint schedule Item No.3 The property of one Philip situated on the eastern side of the property of Geetha Benjamin. The Panchayat road lying north-south is situated on eastern side of the property of Philip. Plaint schedule item No.4 way starts from the western side of the panchayat road goes towards the west along with the southern boundary of the properties of Geetha Benjamin and Philip and it continues towards the west through the northern boundary of plaint schedule item No.2 and goes through the eastern boundary of the plaint schedule item No.1 and ends on the boundary plaint schedule item No.3 property. The way is having 8 feet width at its entrance and it has a width of 10 feet on the sides of the