A valid claim for easement by grant requires proper identification of the property in relation to the original partition deed.

JUDGMENT

The plaintiff in O.S.No.265/2012 on the files of the Principal Munsiff's Court, Kasaragod, is the appellant and he assails the judgment of the First Appellate Court, namely III Additional District Court, Kasaragod, in A.S.No.43/2015-which had been filed by the defendants/respondents challenging the decree passed by the Trial Court in the said suit. 2. According to the appellant, the original suit had been filed for a permanent prohibitory injunction restraining the respondents from obstructing their rights of user over plaint C schedule property which, they say, is a road created by him and his brother Sri.Narayana Bhat, consequent to the allotment of properties in their favour as per an earlier partition deed, namely Ext.A1. The specific allegation of the appellant is that plaint C schedule pathway was created by carving out from his and his brother's properties, namely, A schedule in Ext.A1 partition deed in his favour and B schedule in the said partition deed in favour of his brother Sri. Narayana Bhat; and that this was done so as to widen an existing pathway leading to their properties from their 'tharavadu'

house.

3. The appellant says that the afore facts were cogently established before the Trial Court and that the said Court thus decreed the suit, finding that the respondents were attempting to obstruct his right of user through the said pathway. He says that, however, when the matter was taken up in an appeal by the defendants before the First Appellate Court, the said Court has allowed it and remanded the suit to the Trial Court for fresh disposal, on the finding that the plaint schedule properties, particularly, C schedule thereof, has not been identified properly by the learned Advocate Commissioner, who had filed Exts.C1 to C4 reports and sketches with the help of a Taluk Surveyor; with a consequential direction to the Trial Court to identify the properties on the strength of Ext.A1 partition deed. The appellant says that this was completely unnecessary and that the Appellate Court, therefore, ought to have not ordered remand and ought to have disposed of the appeal on its merits. On such plea, he prays that this appeal be allowed and the judgment of the First Appellate Court be set aside.

4. In response to the afore submissions made on behalf of the appellant by Sri.Suresh Kumar Kodoth, learned counsel appearing for the respondents/defendants, Sri.Jawahar Jose, began his submissions by saying that it is the specific case of his clients that plaint C schedule road was created by them subsequent to the purchase of plaint B schedule property from the aforementioned Sri. Narayana Bhat-brother of the appellant; and therefore, that they are entitled to use it exclusively for themselves and to have a gate installed therein. He says that, therefore, the Trial Court ought to have found that plaint C schedule property belongs to his clients exclusively, which is fortified by the fact that Ext.B3 sale deed, executed by the aforementioned Sri. Narayana Bhat in their favour, unequivocally recites that plaint B schedule property has no encumbrances and does not reserve rights in favour of Sri. Narayana Bhat in any manner. He thus asserts that the First Appellate Court was justified in having directed remand of the suit for fresh disposal to the Trial Court because, unless the plaint schedule properties are properly identified with reference to Ext.A1 partition deed of the plaintiff and his brother Sri.Narayana Bhat, it is not possible to find out whether plaint C schedule road has been created by carving out properties from schedules A and B of the said partition deed, as has been asserted by the plaintiff. He thus prays that this appeal be dismissed and the judgment of the First Appellate Court be confirmed.

5. I have considered the afore submissions and have also examined the evidence on record and testimonies of the witnesses, as recorded by the Trial Court.

6. It is indubitable from the pleadings on record of the a