Continuous use of a pathway for over 10 years can establish a prescriptive right of easement, emphasizing the importance of evidence.

JUDGMENT

The appeal has been filed by defendant Nos.1 and 2 in O.S.No.1097 of 2011 of the Additional Munsiff Court-I, Neyyattinkara. The 1st respondent filed the suit for a declaration of right of easement by prescription over the plaint ‘D’ schedule pathway and for a mandatory injunction for removing obstructions created in the road and for consequential reliefs. The 1st respondent is the owner in possession of Plaint 'A' schedule property obtained by virtue of partition deed No.2943 of 1952. When the defendants attempted to dig a Well encroaching upon the Plaint ‘D’ schedule pathway affecting free use of the pathway by the plaintiff, the suit was filed. Pending the suit, the digging of the Well was completed and a platform was constructed around it which has been shown as plaint ’E’ schedule property and plaint had been amended seeking a prayer for mandatory injunction to remove Plaint ‘E’ schedule platform. The appellants are owners of Plaint ‘B’ and ‘C’ schedule properties, which lie on either side of the way. According to the plaintiff, ‘D’ schedule pathway is having 1.5 meters width and he was using it for the past more than 50 years for access to Plaint ‘A’ schedule property without any obstruction, continuously and peacefully and he has perfected his right of easement by prescription.

2. The appellants filed written statement contending that the plaintiff has no ownership and possession over the entire extent of property shown as Plaint ‘A’ schedule. According to them, the pathway has only 1 meter width. It is admitted that there is no other way other than ‘D’ schedule to enter the property of the 2nd appellant also. It was contended that the Well has been in existence for the past several years. The 3rd and 4th defendants in the suit had filed written statement admitting the plaint averments and they are also persons who are interested in a declaration that the width of the way is 1.5 metres.

3. During trial, the court had appointed two Advocate Commissioners who have filed their reports and plan as Exts.C1 and C1(a) and Exts.C2 and C2(a). Exts.C1 and C1(a) was prepared by the first commissioner and submitted on 20.12.2011. As per Ext.C1(a)

plan, the width of ‘D’ schedule way at the point it meets the public road is about 1.3 meters width and the rest of the portion has a width of 1.5 meters. It is stated in the report that at about 1 meter eastwards at the beginning of the pathway, and about 20 cm towards north, a Well is sought to be dug. Exts.C2 and C2 (a) had been prepared and submitted on 17.11.2012 by the second Commissioner, almost one year later. The 2nd Commissioner has noticed that the digging of the Well has been completed and a platform has been constructed around it. The second Commissioner who visited the property found that the width in the beginning of the pathway has reduced from 1.3 meters to 1 meter and has reported that there appears to be an encroachment after the visit of the first Advocate Commissioner. The trial Court decreed the suit and declared that the plaintiff has right of easement by prescription over Plaint ‘D’ schedule way as shown in Ext.C1(a) plan. The Court has also passed an order of perpetual injunction restraining the defendants and persons claiming under them from causing any obstruction to the free user of Plaint ‘A’ schedule way as shown in Ext.C1(a) plan. Regarding the obstruction that was created, the Court has granted a mandatory injunction to demolish Plaint ‘E’ schedule platform of the Well, to restore the Plaint ‘D’ schedule pathway as shown in Ext.C1(a) plan and further directed that if the defendants fail to comply with the mandatory injunction, plaintiff is at liberty to get the said work executed through process of law and realise the cost incurred from defendants 1 and 2. Aggrieved by the judgment and decree of the trial court, the appellants preferred an appeal before the 1st Appellate Court. The 1st Appellate Court has confirmed the judgment and decree of the trial