CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 17^TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 RSA NO. 128 OF 2010 AGAINST THE JUDGMENT AND DECREE DATED 28.08.2009 IN AS 44/2007 OF SUB COURT, VADAKARA AGAINST THE JUDGMENT AND DECREE DATED 26.06.2007 IN OS

159/2006 OF MUNSIFF COURT, NADAPURAM APPELLANT/RESPONDENT IN AS NO.44/2007 – SUB COURT, VATAKARA, PLAINTIFF IN OS NO.159/2006 – MUNSIFF, NADAPURAM:

PANANGOTTUM THAREMMAL SARA D/O.KUNHISOOPPY, AGED 54 YEARS, HOUSEWIFE, NOW, RESIDING AT KANIYANKANDI, VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE.

BY ADVS.

SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.N.M.RAJAGOPAL RESPONDENTS/APPELLANTS IN AS NO.44/2007 – SUB COURT, VATAKARA, DEFENDANTS IN OS NO.159/2006 – MUNSIFF, NADAPURAM

1 P.T.KUTTIALY, S/O ABDULLA, AGED 42 YEARS, TRADER,PANANGOTTUM THAREMMAL MOKERI AMSOM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA STATE.

2 MURICHANDY JAMEELA, W/O.KUTTIALI AGED 38 YEARS, HOUSE WIFE,, PANANGOTTUM THAREMMAL MOKERI AMSOM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA STATE.

THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON

17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CR K.BABU, J.

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R.S.A. No.128 of 2010 ---------------------------------------------

Dated this the 17^th day of February, 2022

JUDGMENT

The plaintiff in O.S.No.159/2006 on the file of the Munsiff's Court, Nadapuram is the appellant. The defendants are the respondents.

2. Material facts relevant for the adjudication of this appeal are as follows:

2.1. Plaint 'A' schedule property originally belonged to the father of the plaintiff. In 1971, the plaintiff and others assigned their right over the property to Kunhamina and others as per registered deed No.576/71. Subsequently, in 1978 under a registered deed No.2744/1978, the plaintiff acquired right over 'A' schedule property. The plaintiff is the absolute owner in possession of the plaint 'A' schedule property.

2.2. Plaint 'B' schedule property forms part of the property held by the defendants. Plaint 'B' schedule property is a pathway leading to plaint 'A' schedule property from the eastern Changaramkulam-Narikkottumchal road. The pathway has been in existence from time immemorial. Plaint 'B' schedule way runs on the southern side of the property held by the defendants. The plaintiff has no other way than 'B' schedule to access the eastern public road. The plaintiff has been using the plaint 'B' schedule pathway continuously, openly and uninterruptedly from 1978 onwards and even prior to that period, the way was in existence. The plaintiff acquired the right of easement over 'B' schedule property.

2.3. In 2002, defendant No.1 acquired the property on the eastern side of 'A' schedule to which plaint 'B' schedule forms a part. The plaintiff is residing 22 kms away from the plaint schedule property. On 19.11.2006, when she visited the plaint schedule property, either side of plaint 'B' schedule property was found closed by putting fencing, thereby blocking the 'B' schedule way by the defendants. As a result, the plaintiff instituted the Original Suit for a mandatory injunction to remove the blocked fencing and for a perpetual prohibitory injunction against the defendants.

2.4. The defendants resisted the suit contending that no way as described in 'B' schedule exists. There never existed a way through the property of the defendants to access plaint 'A' schedule property from the eastern road. The plaintiff has been using another way through the western side of ‘A’ schedule property to access the public way on the western side. This way runs through the south- western corner of the property owned by the brother of the plaintiff. The plaintiff has got direct access to plaint 'A' schedule property through the courtyard of her brother's house. The plaintiff, with an ulterior motive, set up the claim that the plaint 'B' schedule way has been in existence through the propert