A plaintiff entitled to an injunction must prove ownership and apprehension of trespass, especially when co-ownership is claimed over a disputed access route.

JUDGMENT

This appeal is filed by the plaintiff aggrieved by the judgment and decree in A.S 50/2009 of the Sub Court, Pala, which reversed the judgment and decree in a suit for prohibitory injunction in his favour.

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

The plaintiff claims that the plaint schedule property has been allotted to him as per a Will bearing No.13/1964. The plaintiff is residing in the house in the plaint schedule property. On the western side of the plaint schedule property, there was an Edavazhi, and later this Edavazhi was developed into a public road and the public road passes through the southern side of the plaint schedule property for a distance about 20 meters towards east and thereafter it turns towards the north and ends towards the house of the plaintiff. During 1992-1993 for the construction of the house of the plaintiff in the plaint schedule property, the plaintiff had extracted laterites from the plaintiff’s property situated in the south-eastern corner of the plaint schedule property. For taking the said laterite stones, the plaintiff had constructed a road through the southern side of the plaint schedule property up to the site where the laterite stones lie. The defendant is having 1½ acres of property in the south-eastern side of the plaint schedule property. The defendant is having another 4 acres of property attached to the above 1½acres. The Cheruvally- Poovatholi road is passing close to the 4 acres of property of the defendant. From this road, the defendant has constructed a new road through his property up to the south eastern corner of the plaint schedule property and thereafter he is attempting to make a new road through the plaintiff’s property. Hence the present suit. The defendant resisted the suit contending that through the south and western side of the disputed property, there was a public way aged more than 100 years. The way was formed by dedication of the properties by the adjacent property owners. The public modified this into a public road and were using this for their traffic for more than 40 years. As this road was very steep, the construction of the road was not completed earlier. After some time, the defendant’s sons purchased the property lying in the south eastern side of the public way. After dedication of the property, which was done as per the request of the general public and the Manimala Grama Panchayath, a link road was constructed. On behalf of the plaintiff, Exts.A1 and A2 documents were marked and PW1 was examined. No documentary evidence was adduced by the defendant. Exts.C1 to C2(a) are the reports, sketch and plan submitted by the Advocate Commissioner. The Advocate Commissioner, as shown in Ext.C1 report, specifically found that there was an attempt made by the defendant to cut open a new road, a rough sketch was also submitted along with the plan. The trial court on the basis of the oral and documentary evidence came into conclusion that the plaintiff was entitled to succeed and thus granted a decree of injunction restraining the defendant from cutting open a new pathway into the plaint schedule property. The defendant was also restrained from trespassing into the plaint schedule property. Aggrieved, the defendant preferred A.S. No.50/2009 and the First appellate court in reappreciating the evidence found that the plaintiff had come with unclean hands and therefore dismissed the suit and hence the present appeal.

3. On 28.05.2012, this Court framed the following substantial questions of law:

(i) When the plaintiff claims and proves title and possession over the plaint scheduled property