A plaintiff must prove the existence of a claimed easement pathway with independent evidence to succeed in injunction claims.

JUDGMENT

This appeal arises out of the concurrent findings rendered by the Munsiff Court, Chavakkad in O.S.No.1498/2001, as affirmed in A.S.No.173/2010 by the Additional Sub Court-II, Thrissur.

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

2.1. The appellant/plaintiff instituted a suit for injunction restraining the defendants from obstructing the right of the appellant/plaintiff over B schedule pathway. The appellant contended that originally the property was with his father under a tenancy right and that he obtained a purchase certificate through a proceeding before the Land Tribunal in O.A.No.3199/1970. Thereafter, there was a partition between the plaintiff and his brother Devassy. The plaintiff is thus holding the property based on the inter se partition between the plaintiff and his brother. In order to access the A schedule property in the partition deed, the plaintiff has got a right of easement by prescription over a pathway of 4 feet width and 90 metre which lies in R.S.No.60/7. It is alleged that the defendants are trying to close down the said pathway. It is further contended that the pathway in question is the only pathway for the plaintiff to access his property and therefore, the right claimed is one of easement by prescription as well as by necessity. The defendants resisted the suit by contending that there is no such pathway as alleged by the plaintiff and that no case of easement by prescription is made out. It was further stated that, the pathway in question is not identified and since the pathway as such is not available, the plaintiff is not entitled for injunction as sought for.

2.2. On behalf of the plaintiff, Exts.A1 and A2 documents were marked and PW1 was examined. On behalf of the defendants, Exts.B1 to B5 documents were marked and DW1 was examined. Exts.C1 and C3 are the reports submitted by the Advocate Commissioner and Exts.C2 and C4 are the sketches submitted along with the reports. The trial court, on the basis of oral and documentary evidence, came to the conclusion that the plaintiff has failed to prove the existence of the pathway in question and therefore, is not entitled for injunction as sought for. Aggrieved, the plaintiff preferred A.S.No.111/2007 before the District Court, Thrissur, which was later transferred to the Additional Sub Court-II, Thrissur, as A.S.No.173/2010. The first appellate court by judgment dated 26.06.2012 dismissed the appeal and hence, the present appeal.

3. This Court had issued notice on admission in this appeal on 16.01.2013. Thus, today, the matter is listed before this Court to consider as to whether this appeal requires an admission on any of the substantial questions of law sought to be raised in the appeal.

4. Heard, Adv.P.Ramachandran – learned counsel appearing for the appellant and Adv.Neeraj M.S. - learned counsel appearing for the respondents.

5. Adv.P.Ramachandran – learned counsel appearing for the appellant, contended that the findings rendered by the courts below are perverse, which calls for interference of this Court in exercise of its powers under Section 100 of the Code of Civil Procedure , 1908. It is contended that the finding of the courts below that the plaintiff has failed to prove the right over the B schedule pathway is erroneous inasmuch as the existence of the pathway has been clearly found out by the Advocate Commissioner in Ext.C3 report. In fact, it is pointed out that the B schedule pathway is the only pathway through which the plaintiff can access the public way which is in existence towards the north and further towards south thereon. Thus, it is pointed out that, when the existence of the pathway is satisfactorily proved, the ingre