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As per the Will, the plaint schedule item No.1 was bequeathed to the plaintiff's father. The 1st defendant's father was bequeathed the property on the western and northern side of plaint schedule item No. 1 property. Later, in the year 1995 plaintiff's father executed a settlement deed and thereby plaint schedule item No. 1 vested in the plaintiff. Plaintiff is thus in absolute possession and enjoyment of the plaint schedule item No. 1 property and he is residing in the ancestral house with his family. By virtue of the same settlement deed, Plaintiff was also vested with a paddy field lying on the northern side of the plaint schedule Item No. 1 property. Plaint schedule item No.2 property is owned by the defendants. It is situated on the western side of plaint schedule item No.1. A panchayat road situated on the western side of the plaint schedule 2025:KER:35973 item No.2 property. From the said Panchayat Road a pathway commences which is lying through the northern side of the entire family property and on the south of the northern paddy field. The said pathway has been used for ingress and egress of heavy vehicles to plaint schedule item No.1 property since the time of the late grandfather itself. The width of the pathway was however not specified in the said Will. It was being used by the plaintiff's predecessor, including grandfather, to reach the building situated in plain schedule item No.1 property. At the time of execution of the Will in 1962, the grandfather had incorporated right over the pathway leading to plaint schedule Item No.1 property towards the western Panchayat road. Said pathway is lying on the northern side of the plaint schedule item No.2 property having an average width of 10 feet and length of approximately 100 feet and was widened to an average 10 to 11 feet through the plaint schedule item No.2 property.

6. In the written statement, filed by the defendants they contended that plaint schedule item No.3 pathway is passing through plaint schedule item No.2 property and that the pathway had only a width of two to three feet and was only a naattuvazhi. Even as per the will of the grand father, the width of the pathway is 3 feet and it does not have a width of 10 or 11 feet as contended by 2025:KER:35973 the plaintiff. None of the documents including the Will supports the claim of the plaintiff. No vehicles were ever driven through the plaint schedule item No.3 pathway as alleged in the plaint. During the lifetime of the grandfather of the plaintiff and the defendants, plaint schedule item No.3 pathway was never used for taking any vehicles The said pathway was being used to park defendants' tractor and other agricultural implements, and also to store the paddy crops at the time of harvesting. It was the 3 feet wide pathway through plaint schedule item No.2, which was being used by the plaintiff and his father as also by the grandfather earlier. If the plaintiff is permitted to widen the plaint schedule item No.3 pathway, it will cause irreparable hardship to the defendants and inconvenience to their agricultural activities. A counterclaim was also raised by the defendants seeking a permanent prohibitory injunction to restrain the plaintiff from widening the pathway provided through the property and from plying vehicles along the said pathway and from causing any damage to the property of the defendants.

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10. In the appeal, which was filed only against the judgment in O.S.No.198 of 2020, the First Appellate Court found that neither party had disputed the existence of a pathway and only the width of the pathway was disputed. The First Appellate Court concluded in paragraph 18 as follows :

"18. The survey commission report and plan were marked as Ext.C6 and C6(a). From the said commission reports it can be seen that the survey number of plaint schedule item No.1 property belonging to the plaintiff is 118/8 and the survey No. of plaint schedule item No.2 property through which plaint schedule item No.3 pathway is alleged to be passing through is 118/2. The survey number of defendants northern nilam which is not at all scheduled as a suit property is 118/3. The said commission report made it clear that the disputed pathway having width of 19.5 feet at the starting point and subsequently varied the width from 15 to 7.8 feet is passing through Survey Number 118/2 as well as 118/3 of the defendants property. It probablized the contention of the defendants that the width of the pathway claimed by the plaintiff by making subsequent amendment in the plaint includes the portion of mud bund or the portion of northern nilam. It is also noted that the plaintiff in the plaint does not claim any easement right through the pathway in Survey No.118/3 of the defendants and the said property was not scheduled in the plaint. So the width of the pathway lying in Survey No.118/2 has to be deduced so as to identify the pathway lying in Survey No. 118/3 which is shown as plaint schedule item No.2 property through which easement right by way of grant is claimed. But the Commissioner did not care to identify specifically the length and width of the pathway passing through the plaint schedule item No.2 property. The measurement mentioned at the starting point is not at all 2025:KER:35973 tally with the finding of the Commissioner that the total width of the starting point of the disputed pathway is 19.5 feet. The commissioner and surveyor were not examined as witness so as to clarify the said contradictions in C6 report and C6 (a) plan. So Ext.C6 series are not sufficient to identify the exact length and width of the disputed pathway passing through plaint schedule item No.2 property. The learned counsel for the plaintiff at the time of hearing stated that they did not get sufficient opportunity to examine the commissioners during trial due to the time limitation prescribed by Hon'ble Appellate Court." (Emphasis supplied)

11.The First Appellate Court thus concluded that the plaintiff should be given an opportunity to take steps to adduce evidence, so as to identify the plaint schedule item No.3 pathway in plaint schedule item No.2 property as the Commissioners did not care to identify the same even though several commission reports were obtained in the said case. It is thus holding that the First Appellate Court allowed the appeal by remanding back the suit alone for fresh disposal.

12. Pursuant to the order in IA No. 3 of 2024 in this FAO, an Advocate Commissioner had been appointed by this court and a report dated 19.06.2024 had been submitted by the Advocate Commissioner. It had been inter alia stated in the said commission 2025:KER:35973 report that while entering from the Panchayat road from the western side, it could be found that the width of the pathway at the beginning, that is the western end,- the Bellmouth portion, is 4.72 meters, (15.5 feet), and that the pathway is at its widest at this portion. It had been stated in the Advocate Commissioner's report that the pathway starts from the Panchayat Road on the western side and ends at the plaintiff's property with residential building on the east. The pathway is approximately 3.45 meters wide ( that is approx. 11.31 feet) at the eastern end where it meets the plaintiff's gate. The plaint schedule pathway lies in between the defendant's property (nilam) on the north and the defendant's residential property (with house) on the southern side. It has been stated that in fact the plaint schedule pathway is sandwiched in between two properties belonging to the defendants. The report further states that the northern nilam belonging to the defendants lies at a lower level when compared to the plaint schedule pathway. The level difference varies at different places and at some places there is a level difference of almost one metre. It has been reported by the advocate commissioner that there is a clear level difference throughout between the properties. The 2025:KER:35973 northern end of the plaint schedule pathway is lying in a slanting manner towards the northern nilam of the defendants. It had also been stated in the report that the plaint schedule pathway is an unpaved pathway which is approximately hundred feet long. The current width of the pathway is such that four-wheelers such as car or heavy vehicles cannot ply on the said pathway due to lack of adequate width. The report has stated that the width of the pathway in the middle of the pathway was found to be 2.40 meters (approx. 7.87 feet) from the compound wall on the western side of the pathway to the line of plants and trees found on the eastern end of the pathway. It is relevant to note that the Advocate Commissioner has in her report stated that the exact identification of all the plaint scheduled properties as per title deeds could not be done without the assistance of the surveyor and as such it was not done. Further, it has been stated that the defendant did not make available the will which was the basis for their contention. Thus as per the commission report, the width of the path way is having ranges from 3.45 meters (that is approx. 11.31 feet) at the eastern end, 2.40 meters (approx. 7.87 feet) at the middle of the pathway and 4.72 meters, (15.5 feet) 2025:KER:35973 at the western end, the Bellmouth portion, 4.72 meters, (15.5 feet). Of Course this has been arrived at with the caveat that the exact identification of all the plaint scheduled properties as per title deeds could not be done without the assistance of the surveyor. However for the limited purpose of this appeal, the Commission report gives some prima facie indicators regarding the width.