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The defendants aggrieved by a decree of injunction restraining them from obstructing the plaintiffs' right of easement have come up in this second appeal challenging the concurrent findings rendered by the Principal Munsiff's Court, Ernakulam in OS No.232/2014 and confirmed by the II Additional Sub Court, Ernakulam in AS No.30/2017 .

2. The brief facts necessary for the disposal of the appeal are as follows:

Plaint A item No.1 scheduled property having an extent of 20 cents belongs to the 1st plaintiff. Plaint A item No.2 property consisting of 20 cents belongs to the 2nd plaintiff. The properties were derived by settlement deed No.414/76 dated 13.2.1976 of SRO, Ernakulam. 1.25 Acres of land towards the North and Eastern sides of plaint A item Nos.1 and 2 belong to the brother of the plaintiffs, one Vincent. The properties were given to Vincent by the father of the plaintiffs by 2025:KER:73769 RSA NO. 418 OF 2018 document No.1875/68 of SRO, Ernakulam dated 30.8.1968. When the aforesaid property was settled in favour of Vincent, it was made clear that a pathway having a width of 8 links will be provided to access the property stated as A schedule to the plaint. It is contended that after setting apart the 8 links wide pathway, the balance property alone is vested with Vincent. Later, it was mutually agreed that certain portions of the property from item Nos.1 & 2 of A schedule will also be set apart for widening of the existing pathway by consent deed dated 9.2.2008. It is contended that contrary to the said consent deed, the 1st defendant, after setting apart the property scheduled as B schedule to the plaint, has constructed a compound wall. Thereafter, he constructed a compound wall on the Eastern and Western sides of his property. The land which is set apart to be used as the way by the 1st defendant is after recognising the wish of his father as per the deed No.1875/68. While so, there was an attempt by the defendants to demolish the compound wall towards the Southern end and annex B schedule way into their own property. Accordingly, stating the cause of action arisen on 20.2.2014, the suit was instituted. During the pendency of the suit, an amendment was sought to amend the B schedule pathway having an extent of 19 metres in length and 3 metres 2025:KER:73769 RSA NO. 418 OF 2018 in width, which was allowed. The defendants entered appearance and resisted the suit denying the right of the plaintiffs, contending that there existed no pathway having an extent of 2.13 metres width, equivalent to 7 feet. The execution of the consent deed dated 9.2.2008 was also denied. The existence of the B schedule pathway being used by the plaintiffs to enter into the Chammany Road in order to access the Chittoor-Cheranalloor Road was denied by the defendants.

20. But when the plaintiffs instituted the suit, they tried to enlarge the scope of their permissive right, by setting up a claim that the pathway in question has over the years changed its character and assumed the nature of public way. The falsity of the case set up by the plaintiffs is writ large on the records, and also in the light of the evidence adduced by the parties, including Exts.X1 and X2 documents summoned. The plaintiffs categorically asserted that during the passage of time, the 8 links wide pathway was widened enough to transform itself into a 3 metres width and 19 metres length pathway by the efflux of time and also through an agreement dated 9.2.2008. However, the plaintiffs failed to produce the said agreement and the moment the plaintiffs failed to produce the said agreement, the trial court should have drawn an adverse inference; but rather, this Court 2025:KER:73769 RSA NO. 418 OF 2018 is surprised by the fact that the trial court took extraneous efforts to hold that the B schedule pathway had been identified and a right of easement by both grant and prescription is made out. The extent of deviation of the plaintiffs' case is evident from the fact that during the pendency of the suit, an attempt was made to establish their right over the B schedule pathway as one having a public character and maintained by the Panchayat as a public way. Be that as it may, this Court need not delve into the said issue, inasmuch as the findings of the courts below are not centered around the question as to whether the B schedule is a public pathway or not.

28. Equally so, this Court cannot fathom the reasoning of the first appellate court to sustain the decree of prohibitory injunction 2025:KER:73769 RSA NO. 418 OF 2018 despite finding that the respondents/plaintiffs had only an easement by grant on the pathway having a width of 8 links on the southern side of the compound wall of the defendants' property. It must be noted that the specific plea by the defendants is that what is constructed is only a temporary embankment within their property. If that be so, the defendants cannot be restrained from demolishing what they have constructed within their own property.