Decided on March 28,2017

Karthu And Others Appellant
Antony And Others Respondents


A.HARIPRASAD,J. - (1.) This second appeal was admitted on the following substantial question of law: "When the specific case of the respondent/defendant in paragraph 7 of the Memorandum of Appeal filed before the lower appellate court was that the right of way based on grant relied on by the plaintiff under Ext.A2 had ceased to exist from 1984 onwards, is the lower appellate court justified in reversing the decree of the trial court and dismissing the suit ?
(2.) Heard the learned counsel for the appellants and the contesting respondents.
(3.) The suit is one for declaration of easement right, mandatory and prohibitory injunction reliefs. Admittedly, the property of the contesting parties lie adjacent to one another. Both the properties were part and parcel of a property originally belonged to one Mathew. After his death, his legal heirs partitioned the property in 1094 ME (1919) as per Ext.A2 partition deed. Properties described in D schedule to Ext.A2 was set apart to Mathai (executant No.4). Plaintiff's predecessors in title purchased property from him. Likewise, the properties described in C schedule to Ext.A2 was set apart to Ouseph, who was executant No.3. Defendants claim title to property in C schedule to Ext.A2. Pleadings in the plaint would show that the plaintiffs are entitled to use the way mentioned in C schedule to Ext.A2. As per the recitals, a pathway having a width of 1 1/2 koles had been provided in east-west direction through the northern side of C schedule property. However, the plaintiffs contended that they are entitled to claim a right of easement by necessity. Asserting that right, the suit was filed.;

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