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This appeal is preferred by the plaintiff, aggrieved by the concurrent findings in O.S.No.700/2004, a suit for injunction, on the files of Additional Munsiff Court, Kollam, as affirmed in A.S.No.274/2007 by the Additional District Court-III, Kollam.

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

2.1. The plaint A schedule property belonged to the plaintiff vide Will No.109/90. The property of the 2 nd defendant lies to the north of plaint A schedule property. The property of the 1 st defendant lies further to the north of 2 nd defendant's property. A pathway having a width of 14 ft. is provided under the Will and is lying on the western side of the 1st defendant's property, which is scheduled as C schedule to the plaint. There is a public road leading to Vallikeezh Girl's High School on the west and that the C schedule pathway turns towards west from the north western corner of the 1st defendant's property and it leads toward the western public road. The plaintiff and defendants purchased the B 2026:KER:4443 schedule pathway vide Sale Deed No.2092/2000 for ingress and egress to their properties. So the plaintiff claims right over C schedule pathway as per the terms of Will and also right over B schedule pathway as per Sale Deed No.2092/2000.

3. On 18.11.2014, this Court admitted the appeal on the following substantial questions of law framed in the memorandum of appeal:

i. Is it not the for the courts below to appreciate the fact that the right claimed by the plaintiff is traced to Exts Al and A2, and reading the same along with the existence of the pathway with a width of 12 feet as noted by the advocate commissioner, was not the plaintiff entitled for a relief of injunction? ii. Is it not wrong for the courts below to find that since there is an alternate pathway, the plaintiff is not entitled for the relief? iii. Was it not for the courts below to grant a lesser relief to the plaintiff than what was sought for?

2026:KER:4443

8. When the description of the pathway is not mentioned in Will No.109/90 and that the Advocate Commissioner on local inspection has found the existence of a pathway having a length of 64 feet and width of 12 feet, necessarily the trial court ought to have decreed the suit in terms of the findings rendered by the Advocate Commissioner.

9. It is pertinent to mention that the objection of the defendants is as regards the existence of the 14 feet pathway and that they had specifically raised a plea that only a 3 links width pathway is in existence, which has been belied by the findings of the Advocate Commissioner in Ext.C1 report. That be so, this Court cannot fathom the reason as to why the courts below concluded that, because of the existence of an alternate way which the plaintiff has purchased, his right of easement by grant under a testamentary disposition should be declined.

10. Resultantly, the substantial questions of law raised in the memorandum of appeal are answered as follows:

a. The courts below failed to appreciate the fact that the right claimed by the plaintiff is traced to Ext.A1 and A2 and that an easement by grant is made out. Coupled with the fact that existence of a 12 feet width pathway having a 64 feet length as 2026:KER:4443 evidenced from Ext.C1, would certainly entitle the plaintiff to claim a relief of injunction.