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9. One of the contentions in the written statement is that, though at the time of execution of Exts.A1 and A2 there was a pathway having a width of 3 feet along the northern side of his property leading to the family house on the eastern side, in the year 1972 the father himself shifted the above pathway towards the southern side of the defendant 's property and thereafter, nobody used the pathway which was lying along the northern side of his property. Therefore, According to him, a 3 feet width pathway substituted along the southern side of his property is the only pathway now available for the plaintiff as access to the plaint A schedule property. Further according to the defendant, ever since 1972, nobody used the pathway which was lying along the northern side of his property and as such the right of easement by grant over the earlier pathway has extinguished.

11. In Exts.C1 and C1(a) commission report and sketch prepared by the Advocate Commissioner deputed by the trial court, the Commissioner specifically noted that along the northern side of the residential building in the defendant's property, there is a strip of land having a width of 2.5 m. on the west and 2.7 m. on the east. The commissioner further reported that, through the above strip of land there is a pathway, along the line of C schedule, starting from the western public road and ending at the western side of the plaint A schedule property. At the western extremity as well as on the eastern extremity of the said pathway, there are two gates. The width of the gate on the western extremity has a width of 1.5 metres and the gate on the eastern extremity has a width of 1.4 metres. The Commissioner further noted that the gate put up on the western side of the pathway has an age of 30 years and the gate on the eastern side has an age of 15 years at the time of his visit. The Commissioner in Ext.C1 RSA 989/2006 & 349/2007 report further noted that about 70% of the above pathway was concreted. However, even in Ext.C1 report, the exact width of the existing pathway was not specified. In the above circumstance, the finding of the 1 st Appellate Court that the plaint C schedule pathway has a width of 6 feet, is not substantiated by any reliable evidence. At the same time, the finding of the trial Court that the said pathway has a width of only 3 feet is also not in tune with the evidence on record.

14. After the trial court judgment, there was a further development. The defendant started constructing a new compound wall along the northern side of his property, after leaving a pathway having a width of 3 feet. The above attempt of the defendant was resisted by the plaintiff by filing an Interlocutory Application along with A.S.47/2003 in which the 1 st Appellate Court ordered status quo. The plaintiff filed another application complaining that, in violation of the order of status quo, the defendant constructed the wall and praying for it's demolition and the First Appellate Court allowed the said application. The matter was taken up before the High Court by filing a writ petition. The contention taken by the defendant was that he had constructed the above compound wall RSA 989/2006 & 349/2007 in compliance of the decree of the trial Court. However, since the plaintiff disputed the width of the pathway, this Court also directed the parties to maintain status quo and directed the 1st Appellate Court to dispose of the Appeals in a time bound manner. The 1 st Appellate Court while disposing of the appeals found that the plaintiff is entitled to get a pathway having a width of 6 feet and hence directed the defendant to demolish the compound wall constructed by him during the pendency of this suit, in violation of the order of status quo.

30. The parties have no dispute that those gates were put up by the testator himself. Since the above gate on the western side has a width of 1.5 metre and that at the eastern side has a width of 1.4 metre, it is only just and proper to conclude that the width of plaint C schedule pathway is the width of the gates on it's western and eastern ends. Therefore, it is to be held that the plaintiff is entitled to right of easement by grant over a pathway having a width of 1.5 metre on the western end and 1.5 metre on the eastern end, and nothing more than that, along the line of plaint C schedule.