J U D G M E N T

The unsuccessful defendant is the appellant before this Court. The plaintiff filed a suit for permanent injunction restraining the defendant and her men and agent from parking any vehicle in the pathway provided for ingress and egress of the house property.

2. The plaintiff sold a piece of land to the defendant. The defendant has constructed a house in the land. The entire construction in 810 sq.ft of land without leaving any space for parking as well as pathway and used the common passage for parking causing lot of inconvenience and therefore, he filed a suit for permanent injunction.

3. In the written statement, it is stated that the defendant and her family members own five two wheelers and were parking it without causing any inconvenience to any person during night. The plaintiff has acquiesced to the parking of vehicles for a long time and she cannot take an objection at this distance of time. Since it is a common pathway, it can be used by everybody without causing hindrance to any one. On this score, she sought for dismissal of the suit.

4. The trial Court framed appropriate issues and relying on the evidence of D.W.2, son of the defendant in cross examination that the passage was used for parking the vehicles, even during day time apart from night hours, granted injunction in favour of the plaintiff. On appeal, the First Appellate Court found that the common passage is measuring east to west only 5 ½ feet and right is only for ingress and egress and it cannot be used for parking the vehicles.

5. The contention of the defendant that it is used for a long period is not sustainable as it does not exceed 12 years. Therefore, the defendant cannot claim easementary right by prescription by herself as she is also one of the owners of the property. Therefore, for peaceful enjoyment of both the sides and that the claim of the defendant in respect of the easementry right without completing 20 years is not sustainable, the Lower Appellate Court confirmed the judgment and decree of the trial Court. Aggrieved over the same, the defendant has preferred the above Second Appeal.

6. The learned counsel appearing for both parties have agreed to argue the Second Appeal on the question of law framed on the Memorandum of grounds, which reads as under:-

1) Whether the Lower Appellate Court is correct in law to confirm the judgment of the Trial Court without appreciating Section

25(1) and (2) of the Limitation Act, 1963?

2) Whether the Lower Appellate Court is correct in law to confirm the judgment of the Trial Court without appreciating Section

41 (f) and (g) of the Specific Relief Act, 1963?

3) Whether the Lower Appellate Court is correct in law to confirm the judgment of the Trial Court on the ground that the defendant had not stated as to when she had started the user of the suit property for parking of vehicles without appreciating the pleadings at Para 4 of the written statement?

4) Whether the Lower Appellate Court is correct in law to confirm the judgment of the Trial Court without appreciating the provisions of Order III Rule 1 & 2 Civil Procedure Code, 1908 and the proposition of law laid down in the judgment reported in AIR 2005 SC

439?

5) Whether the Lower Appellate Court is correct in law to confirm the judgment of the Trial Court on the ground that the suit as framed is maintainable in law.

7. The learned counsel for the appellant would vehemently contend that the vehicles are parked without hindrance to the users in common pathway.

The Courts below without appreciating Section 25 (1) and (2) of the Limitation Act, 1963, decreed the suit and the decree and judgment are contrary to Section 41 (f) and (g) of the Specific Relief Act, 1963. According to him, the defendant completed the construction in the year 1987 and the suit came to be filed in the year 2009. Therefore, they have been using the property for over 20 years. Hence, the easementary right prescribed on them to use the way and this point was not considered by the tri