SANKARAN NAIR Vs. BALAN NAIR
HIGH COURT OF KERALA
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(1.) The appellant is the defendant in O.S. No. 281 of 1984 on the Hie of the Court of the Munsiff, Ottapalam. The suit was filed by the respondent herein for a declaration that he has a right of way through plaint "C" schedule to enter into the plaint A & B schedules and for a consequential injunction. There is also a prayer for mandatory injunction to restore the "C" schedule pathway to its original condition after removing the fence put up at the entrance of the pathway.
(2.) The plaintiff/respondent contended that the plaint "A" schedule property belongs to him and that the plaint "B" schedule property is his kudiyiruppa. There is a pathway on the southern side of the plaint "A" sched- ule and on the eastern side of the plaint "B" schedule. The plaintiff and the members of his family used to go out of their house through the pathway on the eastern side of the "B" schedule and thereafter through the pathway on the southern side of the "A" schedule. The portion of the pathway on the southern side of the "A" schedule is shown as plaint "C" schedule item No. 2 and the pathway on the eastern side of the plaint "B" schedule is shown as plaint "C" sched- ule item No. 1. The plaintiff contended that himself and his familymembers have got a right of easement by prescription to use the "C" schedule pathway in question. Accord- ing to the plaintiff, the defendant/appellant closed the plaint "C" schedule item No. 2 by putting up a fence on the eastern and west- ern sides of the pathway. The defendants property is situated on the southern side of the pathway shown as "C" schedule item No. 2.
(3.) The appellant-defendant filed written statement contending that the suit is not maintainable and that the plaintiff is not en- titled to any reliefs in the suit. Portions of the property on the northern and western sides of his property were left out as path- Way several years back. The portions of land so left as pathway vested in the Panchayat and it is a public pathway. When there was a proposal by the Ambalappara Panchayat for widening the pathway and to conveft It into a road, the plaintiff did not co-operate and did not agree to leave out portions of land from his property. Therefore, the de- fendant surrendered portions of his prop- erty on the eastern and southern sides for the purpose of formation of a Panchayat road and 8V6 cents of land was surrendered to the Panchayat. There was a proposal by the defendant that in lieu of the land so surren- dered to the Panqhayat for formation of Panchayat Road, the defendant may be given back the land on the northern side of his property (which is plaint "C" schedule item No. 2) and this proposal was accepted by the Panchayat. Accordingly, the defendant surrendered 8J^ cents as stated above and as permitted by the Panchayat, the plaint "C" schedule item No. 2 was closed by the defendant in March 1982.;
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