ORDER

1. The suit was for perpetual injunction. The trial court dismissed it. In appeal, the learned district judge decreed the suit in part. The defendant is in second appeal.

2. Heard Sri.S.M.Prem, the learned counsel for the defendant and Sri.S.V.Balakrishna Iyer, the learned senior counsel for the plaintiffs.

3. The property owned by the plaintiffs and the property owned by the defendant's father Madhavan Nair lie adjacent. Those properties were one holding owned by one A.V.Raghava Warrier. He executed Ext A3 will to bequeath his property to Madhavan Nair, his son, and Radha, his adopted daughter. The land was perpendicularly divided into two unequal parts and the land on the extreme east was bequeathed to Madhavan Nair and the rest to Radha. These are admitted facts.

4. The plaint A schedule property which was part of the land bequeathed to Radha was sold by her to the plaintiffs in 1988 under Ext A1 sale deed. The plaint B schedule property is a pathway which starts from the public way on the west and culminates in the property on the east which Madhavan Nair received under Ext A3 will. The B schedule pathway ran through the property of Radha when she was holding it. Madhavan Nair was given a right under Ext A3 will to use the plaint B schedule pathway for access to his property on the east. It is an easement by grant. The portions of the property held by Radha after the sale of the plaint A schedule property came to the hands of Madhavan Nair. These are also admitted facts.

5. The plaintiffs contended that the B schedule pathway is part of the A schedule property. It must be so. Ext A1 recites the sale of the plaint A schedule property to the plaintiffs inclusive of the B schedule pathway. The sale of the A schedule property including the B schedule pathway to the plaintiffs by Radha was subject to the easement by grant enjoyed by Madhavan Nair. Ext A1 specifically recites so. The defendant who contends for easement under his father cannot dispute the title of the servient owner to the servient heritage. The B schedule pathway is indeed a part of the A schedule property.

6. The relationship of the parties went strained on account of their dispute on the user of the B schedule pathway. Therefore the plaintiffs filed the suit for a decree of injunction. Even entry of the defendant into the B schedule pathway was sought to be prevented. His entry cannot be prevented since as the son of Madhavan Nair he has the right to use the pathway to go to his father's house which is situated in the property on the east. The trial court dismissed the suit upholding the easement by prescription claimed by the defendant under his father. The appellate court interfered with the said finding and negatived the claim of easement by prescription.

7. Admittedly a compound wall exists on the southern boundary of the B schedule pathway. There is an opening in the said compound wall. The appellate court accepted the evidence adduced on the side of the defendant that the opening was in existence for over 25 years. The easement by prescription claimed by the defendant under his father was found against by the learned appellate judge. The learned judge found that the defendant and his father could use the opening in the compound wall to enter the property on the southern side of the pathway only because of the permission given by the plaintiffs and not as of right. This finding is assailed in the second appeal.

8. The decree granted by the learned district judge reads as follows :

(a) The defendant and his men are restrained by permanent prohibitory injunction from parking any vehicles in plaint B schedule pathway. Defendant is further restrained by a decree of permanent injunction from causing obstruction to plaintiffs reconstructing either the southern boundary wall of plaint B schedule pathway or closing the existing opening in the wall.

(b) Suit seeking to restrain defendant and his men from using plaint B schedule pathway is, however, dismissed.

The decr