Easementary rights can be established even in the absence of specific documentation, especially when mutual agreements are implied through use.

EASWARAN S., J --------------------------------

R.S.A No.793 of 2012 -------------------------------

Dated this the 18^th day of March, 2026 JUDGMENT The appeal is preferred against the concurrent findings in a suit for mandatory injunction and prohibitory injunction by the defendants. The original defendant is no more and his legal heirs have been impleaded in the party array.

2. An extent of 0.57 acres of land in Re-

Sy.No.484/1D3pt of Vorkady village in the A schedule property obtained by the plaintiff by a release deed. Defendant is the brother of the plaintiff. According to the plaintiff, there is an 18 links pathway between the properties of the parties and thus the defendant was trying to reduce the width of the pathway. Hence, the suit. Defendant entered appearance and contested the suit and contended that there is no pathway set up in the document for the plaintiff and therefore plaintiff has no right. It was further stated that, if a road access is provided to the suit property, it will adversely affect the utilization of the plots allotted to the defendant and the other brother. The defendant further contended that 18 links pathway is in his property and therefore, he is entitled to do such activities in terms of his proprietary rights. Before the trial court, the Advocate Commissioner was appointed. The Advocate Commissioner, after inspection, filed Ext.C1 report. In Ext.C1 report, the Advocate Commissioner has reported that there is a clear cut pathway having a width of 18 links. The Advocate Commissioner also reported that the plaintiff is having access to his property only through this pathway and there is no other access. It was further reported that the defendant had constructed a small flat abutting the compound wall which protrudes as one feet into the pathway and he has placed certain flower pots in the said flat. The trial court, on appreciation of the oral and documentary evidence came to the conclusion that the plaintiff was entitled to the reliefs especially since there was no objection given by the defendant in the report of Advocate Commissioner. Accordingly, the suit was decreed. Aggrieved, the defendant/appellant filed A.S.No.95 of 2008 before the Sub Court, Kasaragod. The appeal was dismissed by judgment dated 11.11.2011 and hence, the present appeal.

3. The appeal was admitted on 26.06.2012 and the following substantial questions of law were framed:

“(1)Were the Courts below justified in ignoring the fact that no road as claimed in the suit is provided in the document of title while decreeing the suit?

(2)Were the Courts below justified in accepting the claim for road access based on a contention of mediation without any documentary evidence or pleading regarding the same?”

4. Heard Sri.Srinath Ganesh, learned counsel appearing for the appellant and Sri.T.Madhu, learned counsel appearing for the respondent.

5. Learned counsel for the appellant submitted that originally the suit in the plaint, only one item of property was included and soon after the Advocate Commissioner filed a report, the suit was amended and three survey numbers were incorporated. But, however, the plaintiff failed to incorporate the schedule, over which, the mandatory injunction was sought for. It was further pointed out that going by the recitals of Ext.A1, the release deed, the plaintiff cannot have any right over the 18 links pathway and therefore, the courts below erred in holding that the plaintiff has a right to access to the pathway in question.

6. Per contra, Sri.T.Madhu, learned counsel appearing for the respondent/plaintiff supported the findings rendered by the courts below and contended that the findings are purely based on appreciation of evidence and does not call for interference by this Court und