Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors

4. It may be mentioned that during the pendency of the second appeal before the High Court of Kerala, the original plaintiff expired and his legal representatives were brought on record as substituted respondents before the High Court, who are respondents in this appeal. For the sake of convenience, the appellants herein would be referred to as `the defendants' as they were in the original suit for declaration of easement and permanent injunction filed by the original plaintiff, who is now represented by the respondents herein.

5. The case that was made out by the plaintiff (since deceased), in his plaint was as follows: Plaint A and B schedule properties originally formed part of a vast extent of properties which belonged to one Yogini Amma. During the life time of Yogini Amma, she was in enjoyment and management of the entire property for the benefit of the first defendant Ashramam. On her death, her brother and sole legal heir Krishna Pillai and other disciples executed a settlement deed dated 20th of June, 1948 as per the 3 directions of the deceased Yogini Amma. As per the settlement, the Schedule `A' property of the plaint was allotted to the original plaintiff (since deceased). Even thereafter, the original plaintiff (since deceased) continued to be in possession and enjoyment of the said properties effecting mutation and paying taxes. Even before the settlement deed was executed, during the life time of the said Yogini Amma, there is a building being `A' schedule property of the plaint that was in occupation of the original plaintiff (since deceased). There is a gate provided on the South Western portion of the `A' schedule property for ingress and egress to the same and `B' schedule property of the plaint which is a pathway extends up to the road on the West from the said gate. The said gate and `B' schedule pathway are as old as the building in `A' schedule property of the plaint. Other than `B' schedule pathway, there is no other means of direct or indirect access to `A' schedule property of the plaint from any road or pathway. The `B' schedule pathway of the plaint was granted to the original plaintiff (since deceased) as easement right by the said 4 Yogini Amma and the original plaintiff (since deceased) continued to use it as such from time immemorial. This pathway is situated within the property which is now under the control and use of the defendants. Defendant Nos. 2 to 4 tried to close down the gate on the South Western extremity of the B schedule pathway and were also attempting to change the nature and existence of the `B' schedule property of the plaint. An attempt in that direction was made on 21st of July, 1982. Original plaintiff (since deceased) apprehended that defendant nos. 2 to 4 might forcibly close down the pathway. Hence, he filed a suit for declaration of easement of necessity or of grant and permanent injunction restraining the defendants from obstructing the `B' schedule pathway and for other incidental reliefs.

11. Feeling aggrieved by the order of the IInd Additional Munsif, the defendants preferred an appeal before the IIIrd Additional District Judge, Thiruvananthapuram. The Appellate Court, by an order dated 6th of April, 1999, allowed the appeal partly. The issues framed by the Appellate Court were as follows:

15. Aggrieved by the order of the first Appellate Court, the defendants took a second appeal before the High Court of Kerala. The High Court, by its impugned judgment and order dated 9th of May, 2006, dismissed the appeal and affirmed the orders of the Trial Court and of the Appellate Court.

30.In view of our discussions made hereinabove, we do not find any merit in this appeal. The appeal is thus dismissed. There will be no order as to costs.