The plaintiff is in appeal. 2. The plaintiff approached the trial court for a declaration of easement of way and also for a permanent prohibitory injunction restraining the defendants from obstructing the use of the said pathway by the plaintiff. The plaintiff alleged that he is in possession and enjoyment of plaint item No.1 where he is residing with his family. Plaint items 2 and 3 belong to defendants 1 and 2. The property of the first defendant lies on the western side of the Punnamada road. A pathway starts from its south-eastern side towards west and it proceeds along the eastern side of the property of the second defendant and reaches plaint item No.1. The plaintiff alleges that the pathway is having a width of 5.5 ft. The same has been used by himself and the predecessor in interest. He alleges that he acquired easement of right by way of prescription and also easement of right by way of necessity. He further alleges that the first defendant attempted to obstruct the said pathway and reduced its width. Thus, he approached the court below with the suit.
3. The respondents, who are the defendants, admitted the existence of the pathway and the user of the same by the plaintiff. However, they contended that the width of the pathway is only 3 ft. They preferred a counter claim for a permanent prohibitory injunction restraining the plaintiff from causing any obstruction against putting up a fence or compound wall on the southern side of the first defendant's property leaving 3 ft. width of the pathway.
4. Counter claim was opposed by the plaintiff contending that the width of the pathway is 5.5 ft.
5. On the basis of the rival contentions, the trial court raised proper issues for trial and permitted both sides to adduce evidence. At the trial, Pws.1 and 2 as well as Dws.1 to 4 were examined. Exts.A1 to A5 as well as Exts.B1 and B2 and C1 to C3 were marked.
6. The trial court, after considering the evidence, dismissed the suit. Counter claim was allowed and defendants were granted permanent prohibitory injunction restraining the plaintiff from causing any obstruction to the defendants in putting up a fence or compound wall on the southern side of the first defendant's property leaving a footpath having 3 ft. width.
7. The appellant took the matter in appeal before the lower appellate court. The lower appellate court allowed the appeal in part and granted a decree in favour of the appellant declaring his right of easement of way over the pathway by restricting its width to 3 ft. instead of 5.5 ft. as claimed by the appellant. It is against this judgment, this appeal is filed.
8. I have heard the learned senior counsel for the appellant and the learned counsel for the respondents.
9. It was argued by the learned senior counsel for the appellant that when there is material evidence to show that the width of the pathway was 5.5 ft., the lower appellate court was not justified in restricting the width of the pathway to 3 ft.
10. The case of the appellant/plaintiff was that he and his parents were using the property that lies on the eastern side of their house as a means of access to the road lying on the eastern side in north-south direction.
11. It is crucial to note that the defendants have not specifically denied the claim of easement of right. Their only contention is that the width of the pathway is 3 ft. and not 5.5 ft. as claimed by the plaintiff. A commissioner was deputed by the trial court who was asked to ascertain the width of the road. The appellant/plaintiff had a case that separating the pathway, a fence was put up. However, the Commissioner could not find any fence separating the pathway. The commissioner calculated the width of the pathway based on the existence of certain trees on either side of the pathway. The commissioner who was examined as DW3 has reported that lowest width of the pathway is 5 ft. The appellate court, relying on the testimony of the commissioner that he could not find any grass at the place where the lowest width of the pathway was having 5 ft., jumped into the conclusion that there were no identifying marks at that point to say that the width of the pathway is 5 ft. Both the courts below, relying on Section 22 of the Indian Easement Act, came to the conclusion that the plaintiff can use only 3 ft. wide pathway as the dominant owner must exercise his right of easement in a manner of least onerous to the servient owner.
12. There cannot be any doubt against the proposition that the mode of exercising the right of easement should be least onerous to the serviant owner. However, when there is clear evidence to show that there was a pathway, the lowest width of which is 5 metres as seen by the commissioner, the courts below were not justified in reducing it to 3 feet. Section 22 does not say that the exercise of easement be confined to 3 feet. The Commissioner could not see any cultivation or trees at that portion having a width of 5 feet. That would indicate that the respondent, who is the owner of the servient tenement, has acquiesced to the use of 5 feet wide pathway by the appellant.
13. The findings of the court below that the width of the pathway can be only 3 ft. is based on surmises and cannot be allowed to stand. As there is convincing evidence on record to substantiate the fact that the plaintiff has been using the pathway having a width of 5 ft., the provisions of Sections 22 and 23 need not be pressed into service for reducing its width. Therefore, this Court is of the definite view that the courts below have erroneously fixed the width of the pathway as 3 ft.
In the result, the appeal is allowed. Decree granted by the lower appellate court is modified. Decree as well as the injunction granted by the lower appellate court shall be confined to the pathway having a width of 5 ft. The judgment and decree of the lower appellate court shall stand confirmed in all other respects.
Sd/- A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE