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THE PLAINTIFF'S CASE

3. The case of the plaintiff can be summarised as follows:-

Plaint schedule Item No. I absolutely belongs to the plaintiff as per a registered partition deed of the year 1987 and she is in exclusive possession and enjoyment of the same paying the land tax and effecting improvements thereon. The plaint schedule item No. 2 lying to the south of the plaint schedule item No. 1 belongs to the defendant. Along the southern boundary of plaint schedule item No. 2 is a Municipal gravel road running east-west. Plaint schedule item No. 3 is a pathway having a width of 2 metres and starting from the aforesaid municipal gravel road and running northwords through the plaint schedule item No.2. The plaintiff has been using the plaint schedule item No. 3 pathway for ingress and egress to the plaint schedule item No. I for more than 20 years and in continuation of the user by her predecessors-in-interest. The said pathway has been used peaceably, openly, as a right and as an easement without interruption for more than 20 years and the plaintiff has thus prescribed a right of easement over the plaint schedule item No.3 pathway . The plaintiff has no other pathway besides the plaint schedule item No. 3 pathway for ingress and egress to the plaint item No. I from the Municipal public road referred to above. The plaintiff has a right of easement by way of necessity as well over the plaint schedule item No. 3 pathway. The defendant or anybody else acting under him has no manner of right whatsoever to obstruct the user of the said pathway by the plaintiff. However, with an intention to deny the plaintiff her right over the said pathway, the defendant has on 5-5-2009 unloaded huge quantities of rubles, bricks, river sand etc. in the plaint schedule item No. 2 On enquiry about the unlawful and illegal attempt on the part of the defendant , the plaintiff was threatened by him on 5-5-2009 saying that he was going to construct a compound wall across the plaint schedule item No.3 pathway. The defendant even threatened the plaintiff that he will trespass into the plaint schedule item No. I and cut and remove valuable trees standing therein. Hence, the suit.
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          Transalation

            a)    [A compound wall is being newly constructed

separating the plauint schedule item No. I from the plaint schedule item No.2]. 

             b)    A pathway having a width of approximately 2

       metres passing almost       through the middle of the plaint

schedule item No. 2 and plaint schedule item No. 1 is clearly seen. That portion of the said pathway passing through the plaint schedule item No.2 is seen covered with waste materials. The said pathway has an approximate length of 25 metres inside the plaint schedule item No.2.

"Caveator is constructing a compound wall in his above mentioned property. Construction work is going on".

Thus, even according to the Writ Petitioner/defendant as on 6-5- 2009 the construction work was only going on. If so, he cannot now be heard to contend that as on the date of institution of the suit, the construction of the offending compound wall was a fait accompli.

11. The right claimed by the respondent/plaintiff over the plaint schedule item No. 3 pathway is a prescriptive right of easement. Eventhough the Advocate Commissioner noted the existence of the pathway having a width of 2 metres passing through the plaint schedule item No. 2 belonging to the writ petitioner and proceeding further to the north through the plaint schedule item No. I belonging to the respondent/plaintiff, the Commissioner has clearly noted the attempts made to obliterate that segment of the pathway passing through the writ petitioner's property by dumping waste materials. There is nothing to indicate that the three feet wide footpath passing north south along the western boundary of the plaint schedule item No. 2 belongs to the writ petitioner and was provided by him as an alternate pathway. That apart, as rightly noticed by the courts below, the said footpath is actually entering the property of one Chellamma and not the property of the respondent/plaintiff eventhough respondent/plaintiff may have access to the said footpath. If the strip of land covered by the said footpath also belonged to the Writ Petitioner, then in all probability he would not have excluded the said footpath from his property while carrying out excavation work for the construction of the western boundary wall along the line OJ. Even assuming that the Writ Petitioner was providing the footpath as an alternative access to the plaintiff, the existence of an alternate way is totally irrelevant to a claim of prescriptive easement. Such an alternate pathway can assume some relevance if the right claimed is an easement of necessity and even in such cases courts have taken the view that the alternate way will extinguish an easement of necessity only if the alternate way is such that the dominant owner can use the alternate way as of right.

c) It was only on 8-5-2009 that the learned vacation judge issued the commission. On the same day at 4 p.m. the commissioner inspected the property and he had seen the construction of a compound wall in progress along the northern boundary of the Writ Petitioner's property. Thus the construction of the offending compound wall was competed only after the institution of the suit.
d) The Advocate Commissioner had noted the existence of the plaint C schedule pathway having a width of 2 metres and passing through the plaint schedule item Nos. 1 and 2 and the attempt made to obliterate that portion of the pathway passing through the Writ Petitioner's property by dumping waste materials therein.