The absence of a recognized legal claim for easement rights invalidates restrictions on property use as imposed by lower courts.

JUDGMENT

The plaintiff in a suit for fixation of boundary and consequential injunction has come up with this appeal, aggrieved by the judgment of the Sub Court, Kannur, in A.S.No.105/2012 to the extent of permitting the defendants to use the pathway, if they are using it, despite granting the appellant a decree for fixation of boundary.

2. The appellant/plaintiff filed the suit for fixation of northern boundary of plaint schedule property on the basis of the title deed and for a permanent prohibitory injunction, restraining the defendants and their associates from trespassing into the plaint schedule property and committing waste. The property originally belonged to one Visalakshi Amma, who was allotted with the G schedule as per Partition Deed No.3111/1962. The plaint schedule property is Item No.1 of G schedule. The said Visalakshi Amma sold 59 cents to the plaintiff as per Assignment Deed No.2399/1992 of SRO, Irikkur. The defendants are having the property on the north of the plaint schedule property and are having a road upto to the defendants’ house, under construction from the eastern side and the defendants have been making attempts to form a road through the western portion of the plaint schedule property, so as to have access from the road on the southern boundary of the plaint schedule property. Hence, the suit was filed.

3. The defendants resisted the suit and contended that, there is no cause of action for the plaintiff to file the suit. It was categorically stated that there was no question of attempting to form another road, because there is no road on the western side of the 1^st defendant’s property. The defendants further contended that, the plaintiff’s predecessor, Visalakshi Amma, had no title and possession over the entire extent. While the said Visalakshi Amma was holding the property, a public tar road was formed changing the southern boundary of the plaint schedule property, likewise another road was also formed along the western and northern boundary of the plaint schedule property.

4. With the material pleadings, the parties went to trial.

The plaintiff was examined as PW1 and there was no oral evidence on the side of the defendants. On behalf of the plaintiff, Exts.A1 and A2 documents were produced and on behalf of the defendants, Exts.B1 to B3 documents were produced. Ext.C1 is the report and Ext.C1(a) is the plan submitted by the Advocate Commissioner. The Advocate Commissioner identified and located the plaint schedule property and measured out and suggested the fixation of boundary on the northern side. The trial court, however, dismissed the suit holding that the plaintiff was not successful in identifying the property.

5. Aggrieved, the plaintiff preferred A.S.No.105/2012 before the Sub Court, Kannur. The first appellate court accepted Exts.C1 report and C1(a) plan, and found that the plaintiff has identified the plaint schedule property. However, because of the fact that the Advocate Commissioner has reported that the pathway on the western side of the property is also being used by the defendants for ingress and egress, the first appellate court while granting relief for fixation of boundary, clarified that plaintiff shall not cause any obstruction to the pathway, if used by the respondents. Hence, the plaintiff/appellant has come up with this present appeal.

6. On 20.02.2026, this Court admitted the appeal on the following substantial questions of law framed in the memorandum of appeal:

(i) Is not the direction of the lower appellate court in the decree that the appellant shall not cause obstruction to the pathway if any used by the respondents is without any jurisdiction and illegal in the absence of