IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR WEDNESDAY, THE 8^TH DAY OF SEPTEMBER 2021/17TH BHADRA, 1943 R.S.A.No.39 OF 2021 Against the judgment and decree dated 7.3.2020 in A.S.No.14/1997 of the Additional District and Sessions Court, Vatakara which arose out of the judgment and decree dated

21.12.1996 in O.S.No.163/1989 of the Munsiff's Court, Koyilandy APPELLANT/RESPONDENT/PLAINTIFF:

KIZHAKKE NELIYARAMBATH RAFEEK, AGED 52 YEARS, S/O.AMOOTTY, MUDAKKALLUR AMSOM, ADUVADU DESOM, KOYILANDY TALUK, REP.BY POWER OF ATTORNEY HOLDER-K.N.NIZAR BY ADVS.

SRI.K.I.MAYANKUTTY MATHER SMT.T.K.SREEKALA RESPONDENTS/APPELLANTS 1 & 3/DEFENDANTS 1 & 3:

1 THAVARARAKKATTIL CHOYIKUTTY MASTER, AGED 86 YEARS, S/O.KELUKUTTY, MODAKKALLUR AMSOM, KURUVALLOOR HEAD POST OFFICE, KOYILANDY 673 305.

2 SREEDHARAN, AGED 68 YEARS, MODAKKALLUR AMSOM, ADUVADU DESOM, HEAD POST OFFICE KOYILANDY, PIN 673 305.

BY ADV DR.V.N.SANKARJEE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, ALONG WITH RSA.64/2021, THE COURT ON 08.09.2021 DELIVERED THE FOLLOWING:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR WEDNESDAY, THE 8^TH DAY OF SEPTEMBER 2021/17TH BHADRA, 1943 R.S.A.No.64 OF 2021 Against the judgment and decree dated 7.3.2020 in A.S.No.20/1997 of the Additional District and Sessions Court, Vatakara which arose out of the judgment and decree dated 21.12.1996 in O.S.No.216/1989 of the Munsiff's Court, Koyilandy APPELLANTS/RESPONDENTS/DEFENDANTS:

1 KIZHAKKE NELIYARAMBATH IYYATHU, W/O.AMOOTTY, MUDAKKALLUR AMSOM, ADUVADU DESOM, KOYILANDY TALUK. 2 K.N.RAFEEK, S/O.AMOOTTY, MUDAKKALLUR AMSOM, ADUVADU DESOM, KOYILANDY TALUK, REP.BY POWER OF ATTORNEY HOLDER- K.N.NIZAR, S/O.AMOOTTY, MUDAKKALLUR AMSOM, ADUVADU DESOM, KOYILANDY TALUK. 3 K.N.NIZAR, S/O.AMOOTTY, MUDAKKALLUR AMSOM, ADUVADU DESOM, KOYILANDY TALUK.

BY ADVS.

SRI.K.I.MAYANKUTTY MATHER SMT.T.K.SREEKALA RESPONDENT/APPELLANT/PLAINTIFF:

THAVARARAKKATTIL CHOYIKUTTY MASTER S/O.KELUKUTTY, AGED 86 YEARS, MODAKKALLUR AMSOM, KURUVALLOOR HEAD POST OFFICE, KOYILANDY 673 305 BY ADV DR.V.N.SANKARJEE THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, ALONG WITH RSA.39/2021, THE COURT ON 08.09.2021 DELIVERED THE FOLLOWING:

[CR]

JUDGMENT

Common questions of law and fact arise in the above appeals and, therefore, this Court deems fit and proper to consider the above appeals jointly.

2. R.S.A.No.39/2021 is directed against the judgment and decree dated 7.3.2020 in A.S.No.14/1997 of the Additional District and Sessions Court, Vatakara (hereinafter referred to as 'the first appellate court') which arose out of the judgment and decree dated 21.12.1996 in O.S.No.163/1989 of the Munsiff's Court, Koyilandy (hereinafter referred to as 'the trial court'). The appellant herein is the plaintiff. The respondents herein are the defendants 1 and 3. The suit was for declaration of easement right and injunction.

3. R.S.A.No.64/2021 is directed against the judgment and decree dated 7.3.2020 in A.S.No.20/1997 of the Additional District and Sessions Court, Vatakara which arose out of the judgment and decree dated 21.12.1996 in O.S.No.216/1989 of the Munsiff's Court, Koyilandy. The appellants herein are the defendants. The respondent herein is the plaintiff. The suit was for permanent prohibitory injunction.

4. On trial, treating O.S.No.163/1989 as the leading case, on the side of the plaintiff PWs.1 to 4 were examined and marked Exts.A1 to A8 and on the side of the defendants, DWs.1 to 4 were examined and marked Exts.B1 to B5 documents. Advocate Commissioner's report and plan were marked as Exts.C1 to C5.

5. After the trial, O.S.No.163/1989 was decreed in favour of the plaintiff and dismissed O.S.No.216/1989 by virtue of the common judgment and decree dated 21.12.1996. The defendants in O.S.No.163/1989 challenged the judgment and decree by preferring A.S.No.14/1997. The 1^st defendant in O.S.No.163/1989, who is the plaintiff in O.S.No.216/1989, filed A.S