C O M M O N J U D G M E N T

The defendant in O.S.No.209 of 1999 is the appellant. Challenge is to the judgment of the appellate court, which had granted a decree for declaration and mandatory injunction to the effect that the plaintiff is entitled to a 10 feet width pathway on the northern extremity of the defendant's property in Survey No.73/8B to reach his land in Survey No.

73/8A situated on the western side from the cart track situated on east. 2. The suit was laid by the plaintiff contending that the father of the plaintiff had purchased the suit 'A' schedule property in Survey No.73/8B measuring about 2.5 cents under Ex.A1 sale deed dated 03.08.1959. He would further contend that he was provided a right of way over the property situated on the eastern side, which was purchased by the defendant from a common owner. Claiming that he is entitled to a 10 feet pathway and that the defendant had put up a construction obstructing the said pathway, the plaintiff sought for the relief of declaration and mandatory injunction. 3.The suit was resisted by the defendant contending that the plaintiff has no right of way over the defendant's property and if at all any right existed that has been lost by non-user. He would also contend that there is no pathway or cart track over his property.

4. At trial, the plaintiff was examined as P.W.1 and Exs.A1 to A.14 were marked. The son of the defendant was examined as D.W.1 and Exs.B.1 to B.25 were marked. A Commissioner was appointed pending suit and the reports,plan and FMB sketch filed by the Commissioner were marked as Ex.C.1 to C.4.

5. The trial court, upon consideration of the evidence on record, found that there was a reference to the existence of pathway on the northern extremity of the defendant's property in Exts.A.2 and A.3 sale deeds under which the defendant had purchased the property. Reliance was also placed on the recitals in Ex.A.1 sale deed under which the plaintiff had purchased the property. The trial court however found that since the plaintiff has been given only right of way and the description in the document is shown as 'Nadai Pathai', the plaintiff would be entitled to a 4 feet width footpath from the cart track on the eastern side to the plaintiff's property on the northern extremity of the defendant's property. On the said conclusion, the trial court granted a decree for declaration, permanent injunction as well as mandatory injunction directing the defendant to remove karuvela fence on the northern portion of 'B' schedule property.

6. Aggrieved by the rejection of the claim for 10 feet pathway, the plaintiff preferred an appeal in A.S.No.6 of 2007. Aggrieved by a grant of a decree for a pathway measuring 4 feet width, the defendant's legal representatives filed A.S.No.1 of 2007.

7. The appellate court, upon re-consideration of the evidence on record, concluded that the plaintiff has a right of way to the width of 10 feet as claimed in the plaint and while allowing an appeal filed by the plaintiff in A.S.No.6 of 2007, dismissed the appeal filed by the defendant's legal representatives in A.S.No.1 of 2007. Hence, these two Second Appeal have been filed by the legal representatives of the defendant.

8. The following questions of law have been framed by this Court at the time of admission:

“i) Whether the courts below were right in decreeing the suit when the plaintiff has filed the suit for declaration and permanent injunction without identifying the property?

ii) Whether the plaintiff has right to maintain the suit when his legal right of easement has been lost and extinguished as per Section 27 of Limitation Act, 1963?

iii) Whether the plaintiff is entitled to maintain the suit when he did not have any title and right in respect of the suit property at the time institution of the suit and hence the courts below were right in non-suiting the plaintiff ?

iv) Whether the courts below were right in decreeing the suit against the true owner of the plaintiff 'B' Schedule property