SATHYAN S/O VENKUTTY Vs. SUBHASHINI W/O LATE RAMESAN
HIGH COURT OF KERALA
Sathyan S/O Venkutty
Subhashini W/O Late Ramesan
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B. Kemal Pasha, J. -
(1.) These two second appeals have arisen from the judgment and decree passed by the Munsiff's Court, Ernakulam in O.S.No.318/2007 as well as O.S.No.306/2007. O.S.No.318/2007 was filed by the present appellants claiming a right of easement by prescription over plaint B schedule pathway, allegedly having a length of 24 mtrs. and a width of 2 mtrs. A relief of perpetual injunction has also been sought for. The respondent herein as plaintiff filed O.S.No.306/2007 as one for perpetual injunction restraining the appellants herein from committing trespass into his property. Initially, the Munsiff's court dismissed both the suits. On the dismissal of O.S.No.318/2007, A.S.No.272/09 was preferred before the District Court, Ernakulam. On the dismissal of O.S.No.306/2007, the respondent herein preferred A.S.No.301/2009 before the District Court, Ernakulam. Both the appeals were heard together and the lower appellate court dismissed A.S.No.272/2009 and allowed A.S.No.301/2009, thereby decreeing O.S.No.306/2007.
(2.) Heard the learned counsel for the appellants and the learned counsel for the respondent.
(3.) The issue involved is very simple. The answer to both the second appeals can be had from Ext.C2(a) sketch and Ext.C2 report filed by the learned Commissioner Advocate. Ext.C2(a) clearly gives a picture of the true state of affairs. The plaint schedule property in O.S.No.306/2007 is shown in the sketch as 18.50 cents. The said property is lying at the northern side of the Kaniyampuzha Kadavu Road. The property of the appellants are also clearly shown in Ext.C2(a). The line building of the appellants is situated evidently at the eastern extremity of their property. The said building is situated 6.5 mtrs. away from the northern side of the Kaniyampuzha Kadavu Road. At the northern side of the line building there is a pathway having a width of 1 mtr. and 65 cms., leading to the cosmo line public road situated at the west. The said cosmo line public road also joints the Kaniyampuzha Kadavu Road. Strangely enough, the property situated at the northern side of the pathway, situated at the northern side of the line building, also belongs to the appellants. The first building is that of the first appellant, the next building at the northern side to it is that of the 3 rd appellant and the northern most building is that of the 2 nd appellant.;
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