GOURI AMMA KRISHNAMMA Vs. SEETHALAKSHMI AMMA
HIGH COURT OF KERALA
GOURI AMMA KRISHNAMMA
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(1.) Plaintiff in O.S. No. 23 of 1993 on the file of the Munsiffs Court, Cherthala is the appellant herein. The plaintiff filed the suit for declaration and injunction. The plaint item No. 1 property absolutely belongs to the plaintiff as per the decree in O.S. No. 315/72 and sale deed No. 2383/89. The plaintiff and her predecessors were enjoying the said property for the last 50 years. There is a residential building in item No. 1 property wherein the plaintiff and his family are residing. Plaint schedule item No. 2 belongs to defendants 1 to 5. The said property lies on the east of item No. 1. A portion of item No. 2 was sold to the 5th defendant and as such he is in possession of the said portion. On the eastern side of item No. 2, there is a public road which starts from Cherthala Government Girls High School Junction. The plaintiff and his predecessors in interest have been using the pathway through item No. 2 which is shown as item No. 3 for ingress and egrees to item No. 1. The plaintiff and his predecessors in interest have been using the item No. 3 pathway peaceably openly and as of right as an easement without any obstruction for the last 50 years. The plaintiff has no other way except item No. 3 pathway for ingress and egress to item No. 1 property from the road. So, the plaintiff has got a right of prescriptive easement over the item No. 3. The defendants have no manner of right to obstruct the user of the item No. 3 pathway. But the defendants jointly tried to obstruct the pathway. If the defendants succeed in their attempt, it will cause irreparable injury to the plaintiff. Hence the suit is for declaration of prescription easement over the item No. 3 pathway and also for consequential injunction.
(2.) Defendants 1 to 4 filed written statement contending that the suit is not maintainable. They are residing at Perumbavoor. Item No. 2 property has no fencing. Hence the people in the vicinity of item No. 2 might have used item No. 2 for ingress and egress. But that is not as of right. The allegation that the plaintiff and his predecessors in interest have been using the item No. 3 pathway as of right, as an easement, peaceably, openly and without any obstruction for the last 50 years is denied. Item No. 2 property was sold to 5th defendant and as such, the 5th defendant is in possession of the said portion. Admit the existence of road on the eastern side of item No. 2. There is no pathway as item No. 3 as alleged in the plaint. There are pathways across item No. 2 other than item No. 3. But none of them is a pathway in respect of which easement right can be claimed. The plaintiff has alternative way for ingress and egress to the item No. 1 property. On the western side of item No. 1, there is a pathway through which the plaintiff can reach the eastern road. The above said road is in existence for a very long time. Even before construction of the road, there was a pathway. The plaintiff and his predecessors in interest have been using the above said pathway for ingress and egress to item No. 1. The plaintiff has not perfected any right of prescription easement over item No. 1. The plaintiff has constructed a compound wall on the eastern side of item No. 1 about 7 years back. Before that, there was no gate. The plaintiff has been maintaining a fence about 6 to 7 years back in the place where he has constructed the compound wall. There was no step on the eastern fence. Defendants 1 to 4 applied for sanction for the reconstruction of the building in item No. 3. Even before that, defendant has got a plan approved by the municipal authorities. The plaintiff influenced his level best for the non approval of the plan submitted by defendants 1 to 4. But the plan was approved. The plaintiff is not entitled to get any relief as prayed for and the suit is liable to be dismissed.
(3.) The 5th defendant also filed written statement raising identical contention of defendants 1 to 4. The allegation that the plaintiff and her predecessors have been using item No. 3 as of right of easement, openly, peaceably and without any obstruction for the last 50 years is denied. The south eastern portion of the item No. 2 belongs to the 5th defendant. He purchased 10 cents of property as per document No. 3141/88 and the said property is in the absolute possession and enjoyment of the 5th defendant. After purchase, he has constructed fence on the eastern, northern and western side of the property by using stumps. The said fact is known to the plaintiff at the time of purchase of the said 10 cents. There was no pathway as alleged by the plaintiff. At present, there is no fence in the property of the defendants. When the property remained unfenced, the plaintiff or somebody might have walked through the defendants' property. That would not entitle to claim the right of easement by prescription over item No. 3. The plaintiff has constructed a compound wall and a gate about 7 years back. Before that there was a fence on the eastern side, wherein no gate was fixed. The suit is liable to be dismissed.;
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