A claimant must acknowledge the servient owner's rights to establish a prescriptive easement; conflicting testimony undermines the claim.

JUDGMENT

This R.S.A has been directed against the judgment and decree in A.S.No.63 of 2017 on the file of Additional District Court-III, Mavelikkara which arise out of the judgment dated 31.03.2017 in O.S.No.115/2014 on the file of Munsiff's Court, Mavelikkara. Suit is one for declaration and for permanent prohibitory injunction. (Parties will hereafter be referred as per their status before the trial court)

2. Plaint A schedule property belongs to the plaintiff who obtained the same as per Ext.A2 sale deed and Ext.A3 settlement deed. Plaintiff's husband and his brother obtained title over the plaint A schedule property as per Ext.A1 partition deed described as item Nos.2 and 3. Plaint B schedule property belongs to the defendants which lies immediately on the north of plaint A schedule property. Plaint C schedule is a pathway having width of 2 meters and length of 17 meters which starts from the southern side of plaint B schedule property and reaches upto Budha Junction-Railway Station, Public Road. Plaintiff has been using C schedule pathway from 03.03.1987 onwards openly peacefully without any interruption as of right as an easement. There is no access to plaint A schedule property. When the defendant attempted to beautify the plaint C schedule way paving interlocked tiles, O.S.No.84/2012 was filed. That suit was withdrawn with liberty to file fresh suit. Defendants are causing obstruction for erecting electric line and drawing water line through plaint C schedule property. Hence the suit.

3. Defendants filed joint written statement denying the claim of right of easement by prescription over C schedule property to the plaintiff. First defendant and her husband purchased pathway for having access to the public road on the southern side as per Ext.B1 in the year 1969. Thereafter, property owners on either side dedicated property whereby the present road came into existence. The use of plaint C schedule pathway with the consent of the defendant is admitted. Plaintiff has no right to draw water line and telephone connection through C schedule way.

4. PW1 to PW3 were examined. Exts.A1 to A6 series were marked from the side of the defendants. Exts.B1 to B4 were marked from the side of the defendants.

5. On appreciating the facts and circumstances and evidences adduced, the learned Munsiff dismissed the suit on the ground that the plaintiff failed to prove the right of easement over C schedule pathway. Against which the plaintiff filed appeal and first appellate court, by the impugned judgment and decree, dismissed the suit confirming the judgment and decree passed by the trial court. Aggrieved by the same, plaintiff approached this Court in second appeal.

6. Notice was issued to the respondents/defendants and both sides were heard.

7. According to the learned counsel for the plaintiff, the suit was dismissed mainly on the ground that plaintiff claims ownership right over the plaint C schedule pathway and is not admitting the ownership of the defendant over C schedule pathway. O.S.No.84/2012 was filed by the plaintiff against the defendant and it was withdrawn when it was found that plaint C schedule way is owned by the defendant. It is also his contention that in the plaint schedule description, plaint B schedule is described specifically including plaint C schedule also. According to him, the plaintiff has shown the C schedule as the property of the defendant and hence the findings of the court below that the plaintiff did not admit ownership of the defendant over the C schedule property is incorrect. It is also his contention that plaintiff has filed I.A.No.03/2020 for amendment of the plaint but that was dismissed by the first appellate court. So, at any rate, according to him, the dismissal of the suit by the trial court as confirmed by the first appellate court is illegal and is liable to be interfered with.

8. Learned counsel for the defendants, on the other hand, would contend that the defendant has no objection in plaintiff usi