The appellate court's remand for fresh evidence was justified due to the trial court's failure to consider the necessity of evidence regarding easement rights, despite the absence of the original will deed.

JUDGMENT :

This appeal is filed challenging the judgment and decree dated 29.09.2023 in A.S.No.13 of 2022 on the files of the Sub Court, Chengannur, which is filed against the judgment and decree dated 04.08.2022 in O.S.No.198 of 2020 of the Munsiff's Court, Chengannur. Appellants herein were the defendants in the said suit and the respondent was the plaintiff therein.

2. Two suits, viz., O.S.No.198 of 2020 and O.S.No.199 of 2020, filed by relatives against each other were considered by the Munsiff Court, Chengannur. The dispute inter alia concerned the width of a pathway. A counterclaim too had been raised in OS No. 198 of 2020. The learned Munsiff dismissed both suits as well as the counterclaim vide common judgment dated 04.08.2022. An appeal, A.S.No.13 of 2022 was filed before the Sub Court, Chengannur challenging the judgment and decree in O.S.No.198 of 2020. No appeal was filed challenging the judgment and decree in O.S.No.199 of 2020 or from the dismissal of the counterclaim in O.S.No.198 of 2020. The Sub Court, Chengannur, disposed of A.S.No.13 of 2022 remanding the case back to trial court granting opportunity to both sides to adduce fresh evidence. The said judgment in A.S.No.13 of 2022 is challenged in this appeal.

3. O.S.No.198 of 2020 was initially filed for injunction simplicitor. It sought to restrain defendants from reducing the width of item No. 3 pathway and from causing any manner of obstruction to vehicular traffic to the plaint schedule item No.1 property through the plaint schedule Item No.3 pathway. Later it was amended and a comprehensive relief of declaration of easement by grant over plaint schedule item No.3 pathway, to recover item No.4 after removing all obstruction and also to restore plaint schedule item No.3 into its original position from the date of the suit and mandatory injunction were incorporated.

4. Heard Sri.Liju V. Stephen, Advocate on behalf of the appellants (defendants) and Sri.K.P.Sreekumar, Advocate on behalf of the respondent (plaintiff).

5. Before proceeding to consider the respective contentions of the parties, the brief facts as contended by the plaintiff is as follows:

Plaintiff as well as the defendants got their respective properties from their predecessors. Their grandfather had executed a registered Will in 1962 which came into effect in 1968. The building situated in the plaint schedule item No.1 is the ancestral house, which was constructed as early as 60 years ago by the grandfather. As per the Will, the plaint schedule item No.1 was bequeathed to the plaintiff’s father. The 1st defendant's father was bequeathed the property on the western and northern side of plaint schedule item No. 1 property. Later, in the year 1995 plaintiff’s father executed a settlement deed and thereby plaint schedule item No. 1 vested in the plaintiff. Plaintiff is thus in absolute possession and enjoyment of the plaint schedule item No. 1 property and he is residing in the ancestral house with his family. By virtue of the same settlement deed, Plaintiff was also vested with a paddy field lying on the northern side of the plaint schedule Item No. 1 property. Plaint schedule item No.2 property is owned by the defendants. It is situated on the western side of plaint schedule item No.1. A panchayat road situated on the western side of the plaint schedule item No.2 property. From the said Panchayat Road a pathway commences which is lying through the northern side of the entire family property and on the south of the northern paddy field. The said pathway has been used for ingress and egress of heavy vehicles to plaint schedule item No.1 property since the time of the late grandfather itself. The width of the pathway was however not specified in the said Will. It was being used by the plaintiff's predecessor, including grandfather, to reach the building situated in plain schedule item No.1 property. At the time of execution of the Will in 1962, the grandfather had incorporated right over the pathway leadi