Easement rights must be properly identified and decrees confined to property descriptions stated in claims.

JUDGMENT

These appeals are preferred by the plaintiff who is also the counterclaim defendant in a suit for injunction. The appellant herein/plaintiff, along with his wife possessed 19 cents of land, which they derived by a sale deed in year 1996. The defendants 1 & 2, who are the neighboring owners, had entered into an arrangement with the plaintiff by which the plaintiff had set apart a pathway having a length of 135 links with a width of 7 links in the east and 8 links in the west. The plaintiff contends that he had constructed a temporary fencing by leaving apart the pathway in question which was earmarked for the easement right of the defendants. Thus, it is contended that the defendants have a permissive right to access the pathway in question. But then, they are attempting to widen the pathway by encroaching upon through the plaintiff’s property. The defendants resisted the suit by contending that the allegation of the plaintiff that the defendants are encroaching upon the plaintiff’s property over and above the pathway in question is not correct and that it is the plaintiff who is trying to reduce the width of the pathway by trying to encroach upon the same. Accordingly, the defendants lodged a counterclaim by impleading the plaintiff’s wife, who is the co-owner of the property. In order to establish that there exists a pathway in question, the trial court appointed an Advocate Commissioner, who submitted a report on 25.10.2007. In the said report, the Advocate Commissioner had specifically mentioned that the pathway is having a length of 140 links and having a width of 7.25 links in the east and 8 links in the West. Though there was apparent discrepancy in the extent of the pathway in question which was scheduled in the counterclaim as well as which is admitted in the plaint, nevertheless the trial court proceeded to accept the said report and plan and decreed the counterclaim by restraining the appellant and his wife from trespassing into the counterclaim schedule property and interfering with the rights of the defendants - counterclaim plaintiffs. The defendants 1 and 2 were also permitted to set out the counterclaim schedule way identified as IMLN Plot and the pitching portion of 35 cms width existing on the immediate north as shown in Ext.C1(a) plan.

2. Aggrieved, the plaintiff preferred two appeals i.e., A.S.No.76 of 2009 and A.S.No.139 of 2012 before the Additional District Court-I, Mavelikara. The first appellate Court by common judgment dated 12.06.2015 dismissed both the appeals and hence the present second appeals raising the following substantial questions of law:

R.S.A.No.1180 of 2015

“(I) Whether the courts below are justified in dismissing the suit on the reason that the entire property in possession of the plaintiff is scheduled in the plaint when the defendants absolutely failed to plead and proved that they got any right over any portion of the plaint scheduled property?”

R.S.A.No.1169 of 2015

“(i) Whether the courts below are justified in decreeing a counter claim to set out a pathway unless the counter claim plaintiffs established any easement right over the counter claim scheduled property by them?

(ii)Whether it is legal and proper to decree the counter claim to set out a pathway and to grant a prohibitory injunction in favour of the counter claim plaintiffs when all the owners of the property are not in the party array of the proceedings?

(iii) Whether the courts below are justified in granting a decree to set out a pathway for a width more than that claimed by the counter claim plaintiffs?”

3. Heard Sri.T.S.Harikumar, lea