The right of a servient owner regarding prescriptive easement must consider the least burden on the servient tenement.

1. The issues involved in these two cases are connected and the appeals are heard and disposed of together. The appeals arise out of two different suits. O.S.No.1141 of 2009 and O.S.No.1178 of 2009 were filed by two different plaintiffs. The defendant in both the suits is the appellant herein. The suits were heard separately, and the judgment in O.S.No.1141 of 2009 was rendered on 28.02.2011, and that in O.S.No.1178 of 2009 was rendered on 29.07.2011. Similarly, the first appeals were also heard separately, and A.S.No.71 of 2011 preferred against the judgment and decree in O.S.No.1141 of 2009 was rendered on 18.11.2015, and the judgment in A.S.No.96 of 2011 preferred against the judgment in O.S.No.1178 of 2009 was rendered on 19.11.2015. This Court fails to understand why the two cases were not clubbed together and heard, particularly since both the suits relate to rights of way by easement of prescription through the property of the appellant herein. The brief facts are as stated below:

2. R.S.A No. 305 of 2016

This appeal arises from O.S No.1141/2009 of Second Additional Munsiff Court, Ernakulam, filed by the respondent for a declaration that he is entitled to use plaint C schedule property as a way for ingress and egress to and from Plaint A schedule property, and for a permanent prohibitory injunction restraining the defendant and his men from obstructing the plaintiff's user of C schedule property and committing any act of waste therein. The suit was decreed, and the appellant filed A.S.No.71/2009, which was also dismissed. According to the respondent, Plaint A schedule, wherein his residential building is situated, was obtained with the right to use the 8 - links pathway described in plaint B schedule, as per a 'Will' executed by his father. It is contended that the B schedule pathway is carved out from the Tharavadu properties of the respondent for the use and enjoyment of the family members. According to the respondent, the appellant had property on the eastern side of the Plaint A and B schedule properties and the respondent and his Tharavadu members have been using plaint C schedule pathway through the property of the appellant for the last more than 25 years as of right peaceably and openly without any interruption, as ingress and egress to their Tharavadu property. The suit was allegedly filed when the appellant collected rubble and other construction materials and threatened the respondent that he would construct a boundary wall along the boundaries of his property by obstructing C schedule way also.

3. The appellant filed a written statement denying any right to the respondent to draw electric lines, pipelines, etc., through the Plaint B schedule pathway and contended that the respondent and his family members never used a pathway having a width of 1.6 meters through his property. According to the appellant, Plaint C schedule did not exist. It is also contended that the pathway being used by the respondent and his family members at present did not exist at the time of execution of the 'Will'.

4. The trial Court held that the respondent has acquired a prescriptive easement right of way over the plaint C schedule property for egress and ingress to the A schedule property through the B schedule, from the public road lying on the eastern side of the appellant's property and granted a decree of injunction. The findings of the trial court were affirmed by the First Appellate Court in A.S.No.71/2011.

5. R.S.A No. 488/2016

This appeal arises from O.S.No..1178/2009 of the Second Additional Munsiff Court, Ernakulam, filed by the respondent, who is the brother of the plaintiff in O.S.No.1141/2009, for a declaration that he is entitled to use Plaint C schedule way for the purpose of ingress and egress to and from plaint A schedule pr