Document Fragment View

Matching Fragments

4.The brief substance in I.A.No.223 of 2018 is as follows:

The suit property is alleged to have an extent of 0.33 square links in re survey No.41/4 of Thalakulam Village with a portion of 7.5 feet width common pathway, which leads to the properties of defendants 3 to 5. The plaintiffs are not in possession and enjoyment of the portion as alleged in the plaint. The property was enjoyed by the defendants for the past 60 years and the pathway was earmarked by the predecessor of title of the defendants as well as the petitioners. The petitioners are having common right over the common pathway. The plaintiffs are residing 1km away from the suit property. The allegation that the cemetery of the plaintiffs fore-fathers is kept inside http://www.judis.nic.in the plaint schedule property is an utter falsehood. Their cemetery is situated far away from the western side of the residence of the plaintiffs. The property of one Vijayan and the property of the fifth defendant is situated with well defined compound wall and that a cement road is laid by the Panchayat and the right of pathway has been recognized, approved and accepted. The plaintiffs, who have no interest or right over the pathway with an intention to cause nuisance to the defendants put up some construction with an extent of 4 x 4 square feet across the pathway and they planted coconut sapplings and appointment of an Advocate Commissioner is necessary to note down these points.
The suit property is not a portion of the common pathway. The width of pathway is approximately three feet. The defendants are trying to extend the width of the pathway. The property 33 square links was mistakenly omitted from being mentioned in the sale deed. On 30.05.2016, Muthaiyan died leaving behind the plaintiffs as his legal heirs. The defendants 1 and 2 conspired together and they executed a correction deed http://www.judis.nic.in on 05.06.2018 before the Sub Registrar office and the allegation of enjoyment of 7.5 feet common pathway is baseless and imaginary.
15.It is seen that there is a dispute regarding the pathway. The respondents 1 to 3 filed written statement with a counter claim. They claim that the pathway with a measurement of 7.5 feet is a common pathway. The claim of the petitioners herein is that there is a pathway only with a width of 3 feet and rest of the portion belongs to the plaintiffs. The plaintiffs claim the property from one Muthaiyah. It is seen that Muthaiyah sold the property to the defendants 1 and 2 and it is stated that 33 square links was not mentioned in the sale deed. The allegation of the plaintiffs is that Muthaiyah left 33 square links in the property in memory of the cemetery of his fore-

fathers, which is in the suit property. Except the allegation that the defendants are trying to gather evidence, no other reason is stated in the petition. The existence of the pathway with an width of 3 feet is accepted by the defendants. Now the width of the pathway is in dispute. The defendants also filed a counter claim. The defendants have the duty to prove the counter claim.

16.Hence, an opportunity for the petitioner to put forth his case has to be given. Since the measurement is the main dispute, the appointment of Commissioner to http://www.judis.nic.in visit the property is also necessary.