The court held that the plaintiff did not establish easement by prescription due to insufficient evidence of prior usage and ownership rights over the pathway.

JUDGMENT

The plaintiff in a suit for injunction, has come up in this appeal aggrieved by the judgment and decree of the Sub Court, Tirur, reversing the judgment and decree granted in his favour by the Munsiff Court, Parappanangadi, in O.S.No.22/2004.

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

2.1. The plaint ‘A’ schedule property along with other holdings originally belonged to Velukutty, who is the father of the plaintiff. He executed a Settlement Deed No.2909/1993 in favour of his wife and children. Item Nos.1 and 2 were set apart to Cherai and Appunni. Item Nos.3 and 4 were set apart to his wife Malu and their children, Balan, Sreedharan, Velayudhan, Raman, Prema, Unni, Sivan and Visala. The said item is mentioned in the plaint as ‘A’ schedule. The plaintiff, along with his mother and other members, except the defendant, is residing in the house in plaint ‘A’ schedule. It is further stated that he is using the plaint ‘B’ schedule pathway as egress and ingress to plaint ‘A’ schedule property for more than eighty years. The width of the pathway is 1.30 metres and the length of the pathway is 40 metres. The defendant, who is his brother, had purchased a property on the eastern side of the ‘B’ schedule pathway. The said property is situated in a higher level than the ‘B’ schedule pathway and there is a clear demarcation on either side of plaint ‘B’ schedule property. Eversince the purchase of the property by the defendant, he was attempting to merge plaint ‘B’ schedule pathway to his property. Hence, the suit seeking for a decree of injunction restraining the defendant from causing obstruction to the plaintiff from accessing plain ‘A’

schedule property through ‘B’ schedule pathway, was instituted.

2.2. The defendant entered appearance and filed a detailed written statement contesting the plaint averments. He contended that, even before the purchase of the property vide Document No.413/1982, there existed no way on the western side of the defendant’s property, which is clear from the prior title deed, Document No.288/1972. It is further contended that, the ‘B’ schedule pathway was carved out by himself for the purpose of a better enjoyment of his property. No claim for easement is made out.

2.3. On behalf of the plaintiff, Exts.A1 to A4 documents were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B6 were produced and DW1 was examined. Exts.C1 and C3 are the reports of the Advocate Commissioners and Exts.C2 and C4 are the sketches filed by them. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that, the existence of the pathway is proved through the reports of the Advocate Commissioners. It is further found that, since ‘B’ schedule pathway is outside the compound of the defendant, therefore the defendant has no right to cause obstruction of any kind. Accordingly, the suit was decreed. Aggrieved, the defendant preferred A.S.No.77/2008 before the Sub Court, Tirur and by judgment dated 06.08.2015, the first appellate court found that the plaintiff failed to prove the existence of the pathway for the last eighty years. Thus the first appellate court concluded that, if the ‘B’ schedule pathway existed, then the same should have been mentioned in Ext.A1 settlement deed. Accordingly, the first appellate court held that the ‘B’ schedule property is included in the defendant’s property and hence, the plaintiff is not entitled to get the decree as prayed for and accordingly, the appeal was allowed. Aggrieved by the reversal of the judgment and decree of the trial court by the first appellate court, the plaintiff has come up in the present appeal.

3. On 30.09.2015, this Court admitted the appeal on the f