Easement rights require clear, established, and documented use; claims lacking evidence and definition cannot succeed.

JUDGMENT

This appeal is directed against the judgment and decree dated 30.09.2020 in A.S.No.65 of 2016 of the Sub Court, Cherthala (hereinafter referred to as 'the first appellate court') arising out of the judgment and decree dated 29.02.2016 in O.S.No.307 of 2013 on the file of the Principal Munsiff's Court, Cherthala (hereinafter referred to as 'the trial court').

2. The defendants are the appellants. The respondent, who is the plaintiff, filed the suit before the trial court seeking for a decree of permanent prohibitory injunction against the appellants/defendants restraining them from trespassing into the plaint schedule property or obstructing the peaceful enjoyment of the said property or constructing fence or compound wall on the boundaries of the property by the plaintiff. The trial court decreed the suit. The defendants preferred an appeal before the first appellate court. The first appellate court dismissed the appeal confirming the judgment and decree of the trial court. Hence this second appeal. The parties are hereinafter referred to as referred in the trial court unless otherwise stated.

3. The plaintiff is the owner of the plaint schedule property having an extent of 00.18 ares of land comprised in Sy.No.16/14A of Thaikkattussery Village in Cherthala Taluk by virtue of Ext.A1 sale deed No.2996/2012. According to the plaintiff, he had purchased the property for parking his autorickshaw. The plaintiff is residing on the south-western side of the plaint schedule property; whereas the defendants are residing on the south-eastern side of the plaint schedule property. It is pleaded specifically that the vendor of the plaint schedule property left 1 m. width pathway on the north-eastern side of the plaint schedule property for ingress and egress to the defendants' property. According to the plaintiff, when he stored materials for the construction of a compound wall, the defendants obstructed to construct the compound wall on the boundaries of the plaint schedule property.

4. The defendants filed written statement contending that the plaintiff's vendor K.M.Purushan had set apart a 1 m. width pathway on the northern and eastern side of the plaint schedule property. According to the defendants, they have been using the above 3 m. width pathway on east-south direction through the plaint schedule property. They claimed easement by prescription over the pathway.

5. During the trial of the case PWs.1 and 2 were examined and marked Exts.A1 to A4 on the side of the plaintiff. Exts.C1, C1(a), C2 and C2(a) were also marked. DWs.1 and 2 were examined on the side of the defendants.

6. Heard the learned counsel for the appellants.

7. In a suit for injunction the material question arise for consideration is as to whether the plaintiff has been in possession of the plaint schedule property on the date of suit and that the plaintiff has valid cause of action to institute the suit. To support the factum of possession PWs.1 and 2 were examined and marked Exts.A1 to A4. Exts.A1 to A4 would show that the plaintiff is the owner in possession of the property and he has been paying land tax to the Government by virtue of Ext.A3. The possession certificate issued by the competent authority would inter alia show that the plaintiff has been in possession of the property. The defendants are residing adjacent to the property and they are claiming right over the plaint schedule property by way of easement by prescription. The plea of easement by prescription is taken as a defence to prove that the defendants have right over the property of the plaintiff. Easement right is a precarious right claimed over the property of another person. In the case at hand, the defendants pleaded easement by prescription setting up an independent right of a way having a width of 3 m. on east-south direction through the plaint schedule property. It is the specific case of the defendants that they have been using the pathway in continuation of their predecessor-in-interes