Against the divergent findings rendered

by the III Additional District Court, Kollam in

A.S.No.28/2001 by granting a decree of permanent

prohibitory injunction, the legal heirs of the

deceased 1^st and 2^nd defendants, the defendant

Nos. 3 to 5, came up with this appeal.

2.

The following questions came up for

consideration :

i)

Whether it is permissible to grant a

permanent prohibitory injunction over a

registered holding in favour of the plaintiff,

when the Commissioner who was deputed reported

existence of a way through the said property?

ii)

Whether the First Appellate Court

failed to consider the question of easement of

prescriptive right claimed by the defendants

over the way in dispute?

3.

The dispute is pertaining to a way over

which the defendants claim prescriptive right of

easement. A commission was let out who in turn

submitted Ext.C1 to C3 and reported existence of

a way through the plaint schedule. One witness

examined by the defendants, DW2 deposed with

respect to existence of the said way for the last

150 years. He is aged more than 65 at that time.

Further, the way starts from a northern road and

passes through the side of the property of one

Karunakaran Pillai, then passing through the

property of plaintiff. It extends further through

the side of property of defendants. The property

of Karunakaran Pillai lying in between the

northern road and the property of plaintiff. The

defendants property situated further south. The

report submitted by the Commissioner and rough

sketch will reveal the location of northern road,

property of Karunakaran Pillai, property of

plaintiff and the property of defendants. A way

also located by the Commissioner starting from

the northern road passing through the property of

Karunakaran Pillai, then the property of the

plaintiff and then further proceeds south through

the side of the property of the defendants. This

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has to be appreciated based on the oral testimony

adduced through DW2, a neighbour, an independent

witness by the defendants, apart from the oral

evidence by DW1. Of course, the plaintiff had

also opted to examine PW 1 to PW3. But their

evidence should be scrutinized in relation to the

report Ext.C1, mahazar Ext.C2 and rough sketch

Ext.C3 prepared by the survey commissioner. The

oldage of defendants house also reported as 50

years and there is no other way available to the

defendants property except the way in question.

The construction of a house and residence for the

last 50 years in the absence of any other way

should be appreciated in relation to the report

of the Commissioner. All these factors taken into

consideration by the trial court and found that

there existed a way through the property of the

plaintiff and hence the relief of permanent

prohibitory injunction against tresspass was

rejected by dismissing the suit. But in appeal,

a contrary view was taken stating that there is

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a beaten track having a width of 1 foot alone was

found by the commissioner apart from the gap

given on the north western corner in the barbed

wire fencing of plaintiffs property and accepted

the explanation forwarded by PW1 that it is for

her use as she used to go through it to the

southern pond. But no such case advanced in the

plaint admitting the gap maintained in her

northern boundary fencing and that it is being

used by her as a means of access to the southern

pond. Without appreciating the lack of pleading,

the explanation forwarded by PW1 was accepted by

the First Appellate Court. Even the First

Appellate Court not cared to consider why it was

not pleaded in the plaint, especially when a gap

was provided in the barbed wire fencing. Even

there is no admission for the plaintiff with

respect to the beaten track in their plaint and

no explanation offered in that regard. The First

Appellate court failed to consider the way which

was going through the property of Karunakaran

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Pillai and its continuation through the property

of plaintiff