It may be mentioned that during the pendency of the second appeal before the High Court of Kerala, the original plaintiff expired and his legal representatives were brought on record as substituted respondents before the High Court, who are respondents in this appeal.
As per the settlement, the Schedule A property of the plaint was allotted to the original plaintiff since deceased .
The defendant No.1 was the Matathipadhi of the Ashramam defendant Nos.
The description of A schedule and B schedule properties was incorrect.
Original plaintiff since deceased was the 13th signatory in the said settlement deed.
For the sake of companyvenience, the appellants herein would be referred to as the defendants as they were in the original suit for declaration of easement and permanent injunction filed by the original plaintiff, who is number represented by the respondents herein.
There is a pathway provided in the settlement deed on the Eastern extremity of the Ashramam properties.
The case that was made out by the plaintiff since deceased , in his plaint was as follows Plaint A and B schedule properties originally formed part of a vast extent of properties which belonged to one Yogini Amma.
Even before the settlement deed was executed, during the life time of the said Yogini Amma, there is a building being A schedule property of the plaint that was in occupation of the original plaintiff since deceased .
During the life time of Yogini Amma, she was in enjoyment and management of the entire property for the benefit of the first defendant Ashramam.
This pathway is situated within the property which is number under the companytrol and use of the defendants.
Defendant Nos.
There is a gate provided on the South Western portion of the A schedule property for ingress and egress to the same and B schedule property of the plaint which is a pathway extends up to the road on the West from the said gate.
The said gate and B schedule pathway are as old as the building in A schedule property of the plaint.
Original plaintiff since deceased apprehended that defendant number.
In companysideration of the love and affection Yogini Amma had towards the original plaintiff since deceased , she wished to gift some portion of the property to him and in pursuance thereof, Ashramam represented by the then office bearers executed a settlement deed in respect of the properties.
An attempt in that direction was made on 21st of July, 1982.
Other than B schedule pathway, there is numberother means of direct or indirect access to A schedule property of the plaint from any road or pathway.
The B schedule pathway of the plaint was granted to the original plaintiff since deceased as easement right by the said Yogini Amma and the original plaintiff since deceased companytinued to use it as such from time immemorial.
On her death, her brother and sole legal heir Krishna Pillai and other disciples executed a settlement deed dated 20th of June, 1948 as per the directions of the deceased Yogini Amma.
Defendant Nos.
There is yet another lane which companyes along the Western side of the Ashramam property through which also the plaintiff has access to his property.
Hence, he filed a suit for declaration of easement of necessity or of grant and permanent injunction restraining the defendants from obstructing the B schedule pathway and for other incidental reliefs.
2 and 3 were its office bearers and defendant No.4 was only an inmate of the Ashramam.
Even thereafter, the original plaintiff since deceased companytinued to be in possession and enjoyment of the said properties effecting mutation and paying taxes.
This appeal is directed against the judgment and order dated 9th of May, 2006, passed in Second Appeal No.198 of 2000 of the High Court of Kerala at Ernakulam, by which the High Court had affirmed the companycurrent findings of fact arrived at by the companyrts below in a suit for declaration of easement rights in respect of B Schedule property of the plaint as a pathway to the A Schedule property of the plaint.
2 to 4 tried to close down the gate on the South Western extremity of the B schedule pathway and were also attempting to change the nature and existence of the B schedule property of the plaint.
1 to 4 entered appearance and filed a joint written statement praying for dismissal of the suit by making the following defence The suit was number maintainable.
2 to 4 might forcibly close down the pathway.
The original plaintiff since deceased was attached to the institution from his childhood.
TARUN CHATTERJEE, J. Delay companydoned.
Leave granted.
