The court emphasized the need for fresh consideration where prior findings lack adequate evidentiary support, reinforcing the necessity for evidence in easement disputes.

JUDGMENT

The appeal as well as the cross objection arises out of the judgments of the Munsiff Court, Karunagappally in O.S.No.137/1998 and RFA No.24/2004 on the files of II Additional District Court, Kollam.

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaintiffs instituted a suit for declaration and injunction. According to the plaintiffs, they derived the right title and interest over the A schedule property as sale deed No.529/1980 of Thevalakkara Sub Registry. Plaint B schedule is situated on the immediate northern side of A schedule property belong to defendants 1 and 2. C schedule is a pathway having a width of 3 feet and length of 100 feet which begins from the public pathway leading to Thevalakkara Devi Temple situated on the northern side of the B schedule property, lying through the eastern side of the plaint B schedule and ends in A schedule property. It is contended by the plaintiffs that the pathway was in existence as per partition deed No.2273/1950. Later, the property was assigned in favour of plaintiffs, the pathway continued and the right over the path way was transferred to the plaintiffs also. On 19.12.1997 a complaint was filed against the defendants before the R.D.O Kollam stating that the defendants had obstructed the C schedule pathway. The village officer was deputed to conduct an enquiry. Accordingly a report was filed stating that the C schedule pathway has been closed. Though there was a direction issued to the defendants to remove the obstructions, the same was not complied and hence the suit.

3. The defendants entered appearance and contested the claim stated that the suit is not maintainable and that there is no pathway as alleged by the plaintiffs.

According to the defendants, in the absence of C schedule pathway, the declaration cannot be granted. On behalf of the plaintiffs Exts.A1 to A10 were produced and PWs1 to 3 were examined. On behalf of the defendants Exts.B1 to B3 were produced and Dws 1 and 2 were examined. An Advocate Commissioner was appointed to identify and measure out the C schedule pathway who filed Ext.C1 report. Based on the oral and documentary evidence, the trial court dismissed the suit finding that the C schedule pathway has not been identified. The plaintiffs preferred RFA No.24/2004 before the II Additional District Court, Kollam. The District Court on consideration of the appeal, reversed the finding of the trial court and granted a decree in respect of 1 ½ feet wide pathway on the eastern side. Aggrieved by the reversal of judgment and decree, the defendants have come up with the present appeal whereas the plaintiffs aggrieved by the restriction of their right to 1 ½ feet width over the C schedule pathway preferred the cross objection.

4. Heard Sri.G.P, Shinod, the learned counsel appearing for the appellants in the appeal and Sri.H.Ramanan, the learned counsel appearing for the respondents/cross objectors.

5. While admitting the appeal, this Court framed the following questions of law.

“i) Did not the lower appellate court act contrary to law in holding that the recitals in Exhibit A5 amounts to an easement by way of grant erroneous in law?

ii) Is not the interpretation of the lower appellate court that the recitals in Exhibit A5 amounts to an easement by way of grant erroneous in law?

iii) Is not the finding of the lower appellate court that an easement by way of grant as provided for in Ext.A5 will not get extinguished on account of non enjoyment as provided for under Sec.47 of the Indian Easement Act contrary to law? Did not the lower appellate court err in assuming that the recit