R.Mohanan Nair vs Sudhakaran Pillai, S/O. Kunjanpillai

P.Somarajan, J

Aggrieved by the judgment of remand of the first appellate court, the appellants came up. The Original Suit is for declaration of easement right and for injunction. The trial court dismissed the suit, against which an appeal was preferred before the first appellate court in A.S. No.61/2018, wherein the appellate court, based on the amendment application and also on an application for permitting him to withdraw the suit, remanded the matter to the trial court for fresh consideration after allowing the amendment application and by rejecting the application for withdrawal of the suit, against which the defendants came up, on the reason that several commissions were issued and the plaint was subjected to amendment on several times and the present application is intended to further drag the matter.

As discussed earlier, the suit is one for declaration of easement right and for injunction. Going by the impugned judgment of the first appellate court, it is clear that a pathway was provided and reserved in the partition deed Nos.3295/1955 and 3779/1972 and it was not traced out and located through the commissioner appointed. If there is any way provided either in the partition deed No.3295 of 1955 or partition deed No.3779 of 1972, it would certainly come under purview of an easement by grant which was also raised by the plaintiffs. Hence the amendment was allowed by the first appellate court and the matter was remanded back to the trial court for adjudicating all these issues afresh by carrying out the amendment. The amendment sought will not, in any way, cause any prejudice to the parties, especially, when it is related to a right of way claimed by way of easement. Further, it will not alter the nature and character of the original suit. As such, it appears that there is no reason for admitting this appeal. Hence the appeal is dismissed in-limine.