Lali v. Rajeena

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 RSA NO. 748 OF 2021 AGAINST THE JUDGMENT/DECREE DATED 14.10.2020 IN AS 111/2014 OF ADDITIONAL DISTRICT COURT-II, MAVELIKKARA AGAINST JUDGMENT AND DECREE DATED 01.08.2014 IN OS 209/2008 OF MUNSIFF COURT,HARIPAD** ## **- APPELLANT/APPELLANT/DEFENDANT COUNTER CLAIM PLAINTIFF:** LALI AGED 57 YEARS W/O. GOPAKUMAR, VETTIYAMPARAMBIL HOUSE, (PANICKEN VEETTIL), KOTTE MURI, THRIKKUNNAPUZHA VILLAGE, KARTHIKAPPALLY TALUK, FROM ASWATHY NIVAS, AYIKKATTU MOOLA MURI, CHINGOLI VILLAGE, KARTHIKAPALLY TALUK. BY ADVS. S.SANAL KUMAR BHAVANA VELAYUDHAN T.J.SEEMA ## **- RESPONDENT/RESPONDENT/PLAINTIFF COUNTER CLAIM DEFENDANT:** RAJEENA AGED 47 YEARS W/O. SHAJI, PATHAZHAPARAMBU HOUSE, KIZHAKKEKARA THEKKU MURI, THRIKKUNNAPUZHA VILLAGE, KARTHIKAPPALLY TALUK-690 516. BY ADV B.RENJITHKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 11.11.2022, THE COURT ON 21.11.2022 DELIVERED THE FOLLOWING: R.S.A.No.748/2021 2 ## **M.R.ANITHA, J** ****************** R.S.A.No.748 of 2021 -------------------------------------------------Dated this the 21[st] day of November, 2022 ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.111/2014 on the file of Additional District Judge-II, Mavelikkara which in turn arise out of the judgment and decree in O.S.No.209/2008 on the file of Munsiff's Court, Haripad. 2. The suit has been filed for declaration and permanent prohibitory injunction. Defendant is the appellant (Parties would hereafter be referred as per their status before the trial court). Plaint Schedule item No.1 property was obtained by the plaintiff as per sale deed No.1425 dated 03.07.2007 and he is in absolute possession and enjoyment of plaint schedule property. Plaint R.S.A.No.748/2021 3 item No.2 property having an extent of 3.65 Ares belongs to the defendant. Plaintiff and family is having ingress and egress through the northern side of the defendant's property . The said pathway is having a width of 5 metres and length of 17 meters and that way has been described as plaint item No.3 . Plaintiff acquired right of easement by grant over that way as per a consent letter executed by the defendant on 05.07.2007. At the time of purchase, item No.3 property was lying in a low level at about 2 ft and in pursuance of the agreement plaintiff elevated item No.3 property and transformed it into a road and erected a gate on the north eastern corner of his property and is using it as a private way. But the defendant is attempting to obstruct the right of use of the plaintiff over item No.3 way for which the defendant has no right at all. On the southern side of the plaintiff's property, there is a way having width of 1 metre leading to SC/ST settlement colony and the plaintiff has no intention to block the said way. Hence the suit has been filed for restraining the defendants and anybody under him from R.S.A.No.748/2021 4 obstructing item No.3 way or causing any alteration to the same or doing any act to cause obstruction to the way. A declaration is also sought for declaring the plaintiff's right over item No.3 having a width of 5 metres and length of 15 metres. 3. Defendant filed written statement contending that on 27.11.2006, an agreement was executed in favour of the defendant's husband with respect to the entire property. Thereafter, the owner was not ready to give the property to the husband of the plaintiff. In that circumstances, the husband of the defendant intervened and persuaded the owner to sell item No.1 property to the plaintiff. There is a road on the western side of the defendant's property. Defendant purchased property paying more money than plaintiff. Then the owners of the property was not ready to give right of way. At that time, plaintiff and her husband threatened the defendant and got executed a document pressurising the defendant. Defendant had already given a pathway having a width of 1.80 meters in east west direction through the northern side of plaintiff's property for R.S.A.No.748/2021 5 access to the plaintiff and to the persons residing on the eastern side of plaintiff's property. Boundary stones were also installed in the presence of Panchayat President. Harijan settlement colony is also situated on the south-eastern side of item No.1 property. An agreement was made for giving pathway of 1.5 metres from the east of plaint schedule property and through the property of the husband of the defendant. Suit has been filed suppressing all those factors. The plaintiff erected a gate at the north western corner of their property and filed the suit. Plaintiff has no right over the defendant's property. Defendant is ready to give a way having width of 1.80 meter. No pathway having a width of 5 metres was ever in existence through the property of the defendant. Plaintiff and defendant purchased the property on the same day. An agreement was arrived at regarding the way and accordingly way having width of 1.8 metres have been provided to the northern boundary. After that, the defendant permitted the plaintiff to carry the building material through the property. That will not confer any right on the plaintiff through the said R.S.A.No.748/2021 6 property. Defendant constructed a building in her property at a distance of 3.5 meters south of the northern boundary of the defendant's property. Plaint item No.3 is not in existence. Defendant denied the execution of the alleged agreement on 05.07.2007. Plaintiff did not fill up any part of plaint item No.2 property. Pathway on the northern side of plaint item No.2 is being used by 8 families residing on the east. The defendant constructed a car porch at a distance of 3 meter south from the northern boundary of plaint item No.2 before seven months. The cause of action alleged is false. 4. Defendant also raised counter claim describing his property as counter claim A schedule. There is fencing on the southern, western and northern boundary of counter claim A schedule property. Stone pillars are installed at the eastern side of counter claim A schedule property immediately before the execution of the sale deed. All the averments in the written statement is also reiterated here and the plaintiff's property has been described as counter claim B schedule. There is also R.S.A.No.748/2021 7 description regarding pathway on the northern side of A and B schedule properties for access to the people residing on the southern and northern side of the said properties. Pathway portion has been described as counter claim C schedule property. Defendant wanted to construct compound wall on the northern side of counter claim A schedule property. But, the plaintiff objected the same. 5. Counter claim defendant filed written statement reiterating the averments in the plaint and sought for the dismissal of the counter claim. 6. PW1 to PW5 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 to B3 were marked on the side of the defendant. Exts.C1, C1(a), C2, C3 and C3(a) were also marked. 7. Learned Munsiff, on evaluating the facts and circumstances and evidence adduced, found that the plaintiff got right of easement by grant over the pathway having a width of 3.60 meters and a length of 17 meters through the northern side R.S.A.No.748/2021 8 of plaint schedule item No.2 property. Consequently, permanent injunction is also granted against which defendant filed A.S.No.111/2014. 8. Learned District Judge, on re-appreciating the facts and circumstances and evidence adduced, dismissed the appeal confirming the judgment and decree passed by the trial court. Aggrieved by the same, the appellant/defendant approaches this Court in this second appeal. 9. At the time of admission, the following substantial questions of law have been formulated by this Court. “ _(i) Were the courts below right in granting a decree of declaration of easement by grant in respect of a pathway in deviation from the description of the pathway claimed in the plaint?_ _(ii) Were the courts below right in holding that there was easement by grant by virtue of Ext.A4 when the document is vague as to the width and length of the pathway?”_ 10. Notice was issued to the respondent/plaintiff. Adv. B.Renjith Kumar appeared on behalf of the respondent/plaintiff. Both sides were heard. R.S.A.No.748/2021 9 11. According to the learned counsel for the defendant, plaintiff and defendant purchased the property from a common owner on the same day and the plaintiff claims right of easement by grant over the plaint schedule pathway on the strength of Ext.A4 consent letter (agreement) executed by the defendant. (Even though defendant contended in written statement that Ext.A4 is executed by playing fraud upon her, at the time of hearing, no argument was advanced in that line) According to him, Ext.A4 did not specify any width of way and only consented to give a right of way through plaint item No.2 to plaint item No.1. Defendant is willing to give a way having a width of 1.8 meters and there is no such agreement to give or provide a way having width of 5 meters, as alleged by the plaintiff. It is also contended that as per the report of the Commissioner, the total width of the defendant's property from the northern boundary to the basement of his house is only 4 meters. Construction of his house is also almost complete and no objection was raised till the completion of the construction and hence, according to him, R.S.A.No.748/2021 10 under the guise of Ext.A4 consent letter, the plaintiff is not entitled to get an easement of grant with respect to a way having 5 ft width to plaint item No.1 property. He would also contend that as per Section 22 of Indian Easement Act, easement should always be the most onerous to the survient tenament. If 5 ft width way as claimed by the plaintiff is allowed, a portion of his house even will have to be demolished. So, at any rate, the way having width of 3.60 meters found by the courts below is to be interfered with. Learned counsel placed reliance on **Ramapriya Hotel (P) Ltd. v. Trivandrum Specialists Hospitals : 2012 (2) KLT 718** ; an unreported decision in **Thilakaraj @ Thilakan and others v. P.J.Sebastian : R.S.A.No.538/2007 dated 29.09.2014** . 12. Learned counsel for the plaintiff, on the other hand, would contend that two courts concurrently found the right of easement by grant with respect to a way having 3.60 metres and hence there is no question of law involved and the width of way is not a substantive question of law so as to entertain the second R.S.A.No.748/2021 11 appeal. He would also contend that the plaintiff purchased the property on the understanding with the defendant to provide pathway having 5 meters width and at the time when Ext.A4 consent letter was executed, there was no building in the defendant's property and in violation of the agreement, defendant constructed the building abutting to the maximum towards the northern portion of the property at his own risk and if at all the way found by the two courts is not granted, the plaintiff may not be able to enjoy the property and occupy the house. He would also contend that till the plaintiff has constructed the house and completed the construction of the compound wall and erected a gate with a width of 12 feet defendant did not raise any objection with regard to the width of the way and he has been using the way all along after the purchase of the property and hence at this stage, the defendant can not object to the use of the way with the width as found by the courts below. 13. Learned counsel placed reliance on **Sree Swayam** R.S.A.No.748/2021 12 **Prakash Ashramam and Another v. G.Anandavally Amma and Others : 2010 (1) KHC 232** ; **Tharayil Thithikutty Umma and Another v. Maimoona and Others : 2022 (5)** **KHC 591** . He would also contend that the plaintiff with all the bona fides take out a commission along with the filing of the suit and Exts.C1 and C1(a) are the first report which are ex parte commission report and Exts.C2 and C2(a) are commission report filed after the defendant started causing obstruction to the way by dumping chips in the way. Commissioners also specifically stated about the existence of the way and the width of the way also has been noted by the Commissioners as 3.60 meters. So, this Court while sitting in second appeal is not empowered to make any interference in the above finding. Learned counsel also placed reliance on **Edakudi Raveendran @ Ravi and Others v. Lohithakshan and Another : 2017 KHC 325 : 2017 (2) KLT 865** . 14. The plaintiff and defendant purchased the property from a common owner on 03.07.2007. Plaint item No.2 property R.S.A.No.748/2021 13 is admittedly situated on the western extremity abutting the panchayat road. The plaintiff claimed right of easement by grant with respect to the way having width of 5 metres and length of 17 metres which is described as C schedule in the plaint. 15. The trial court declared the plaintiff's right of easement by grant with respect to a way having 3.60 metres and length of 17 meters through the northern side of the plaint schedule item No.2 property, that has been confirmed by the first appellate court. 16. Learned counsel for the defendant would contend that as per G.O.(Ms.)No.150/2007/LSGD dated 6[th] June, 2007 and S.R.O.No.495/2007 the Government of Kerala declared that those provisions of the Kerala Municipality Act, 1994 mentioned in the schedule below and the Kerala Municipality Building Rules, 1999, shall be extended and to be in force in all the Village Panchayats of Kerala State with immediate effect, which reads thus: _**Notification :** G.O.(Ms.) no. 150/2007/LSGD dated Thiruvananthapuram, 6th June, 2007_ _**S.R.O.**_ R.S.A.No.748/2021 14 _**No.495/2007** .- In exercise of the powers conferred by sub-section (1) of section 274 of the Kerala Panchayat Raj Act, 1994 (13 of 1994) and in supersession of all the previous notifications issued in this subject matter, the Government of Kerala hereby declare that those provisions of the Kerala Municipality Act, 1994 (20 of 1994) mentioned in the schedule below and the Kerala Municipality Building Rules, 1999, shall be extended and be in force in all the Village Panchayats of Kerala State with immediate effect._ ## _**SCHEDULE**_ _Clauses (2), (3), (19), (32), (34), (38) and (46) of section 2 of Chapter I, Chapter XVIII and sections 509 and 510 of Chapter XXIII, sections 511, 515, 517 of Chapter XXIV, section 563 of Chapter XXV, sections 567, 570, 573 of Chapter XXVI and the fourth and fifth schedules in so far as they relate to the matters specified in Chapter XVII of the Kerala Municipality Act, 1994 (20 of 1994)._ 17. As per Section 2(32) of the Kerala Municipality Act, 1994, ' _private street_ ' means any street, road, square, court, alley, passage or riding path which is not a public street, but does R.S.A.No.748/2021 15 not include a path or way made by the owner of premises on his own land to secure access to or the convenient use of such premises. Chapter XVIII deals with 'buildings' and Chapter XXIII deals with appeals and revision. 18. The notification would indicate that the rules with respect to Building Rules which provides the setback from the street, lane etc also has been introduced to Village Panchayats as per the above notification with effect from 6[th] June 2007. Since in this case the purchase of the property is in the year 2007 and construction of the building is also after the introduction of the S.R.O to the Panchayat area the setback rules would be applicable to the present building of the defendant, the learned counsel contends. 19. He would also contend that as per Rule 2(bz) of the Kerala Municipality Building Rules, 1999, ' _street_ ' means a private street or a public street, synonymous with road and giving access to more than one plot or one building. He would also bring to my attention Rule 25 of the above said Rules and highlighted the first R.S.A.No.748/2021 16 proviso to it. Rule 25(1) provides the minimum distance between the central line of a street and any building other than a compound wall or fence or outdoor display structure shall be 5.0 metres and that between plot boundary abutting the street and building shall be 3 metres. I[st] proviso to Section 25 further says that in the case of cul-de-sac of whatever width but not exceeding 250 metres length or pedestrian lanes and streets upto average 3 metres width or internal roads and streets of whatever width within or leading to any residential colony, it shall be sufficient if the distance between the plot boundary abutting the street and building is 2 metres for buildings upto 7 metres height irrespective of the distance from the central line of the road to the building. But the 2[nd] proviso to Rule 25 provides that in the case of lanes not exceeding 75 metres length leading to one or more individual plots it shall be sufficient if the distance between the plot boundary abutting the lane and the building is 1.50 metres irrespective of the distance from the central line of the lane. However, no evidence is forthcoming to conclude in 17 R.S.A.No.748/2021 which category, C schedule way will come. If it is a lane not exceeding 75 metres leading to one or more individual plots sufficient distance from the plot boundary abutting the lane and the building is 1.50 metres. 20. However no argument was advanced before the courts below in this regard. Though copy of permit produced across the Bar at the time of hearing, it is not brought in evidence. So also approved plan also not produced and brought in evidence. Hence at this fag end the defendant cannot be heard to contend about the violation of Building Rules in second appeal in providing the way. 21. Both courts mainly relied on Ext.A4 the consent letter to find the right of easement by grant to the plaintiff. So, it is very crucial to understand the nature and scope of the consent letter Ext.A4 alleged to have been executed by the defendant. 22. Though the defendant denied the execution of Ext.A4 and contended that it is a fraudulent document, that contention R.S.A.No.748/2021 18 was not pressed into service and while hearing the appeal the existence of Ext.A4 is not seen disputed. Ext.A4 has been executed as consent letter on 05.07.2007 by the defendant in favour of the plaintiff wherein she consented that through the northern boundary of 3 Ares 65 sq.meters of property in Resurvey No.581/2/1/6 to the property of the plaintiff situated on the east of her property the plaintiff will have right of ingress and egress and that she has fully agreed and has no objection for the same. Obviously, Ext.A4 consent letter did not specify the width of the way. It also would not say that it would be a way having vehicular access. The specific case of the plaintiff is that the understanding at the time of Ext.A4 as well as the purchase of the property was that way with a width of 5 meters to take lorries would be permitted through the northern boundary of plaint item No.2. Otherwise he would not have purchased the property and constructed a house therein. The defendant as stated earlier is contending that the way for which she has given permission is only with respect to 1.8 meters width. But, it has come out in R.S.A.No.748/2021 19 evidence that a way with 1.8 meters is proceeding towards east to the settlement colony and admittedly 8 to 9 families are using the said way. Since there is already such a way though it is not specifically stated in Ext.B1, as rightly contended by the learned counsel for the plaintiff, Ext.A4 consent letter might have been given by the defendant with an understanding to provide a way in addition to 1.8 meters wide way which is already existing. But the question is whether by virtue of Ext.A4 the plaintiff can claim a way with a width of 5 meters or the now allowed width of 3.60 meters by the courts below. 23. Learned counsel for the plaintiff placed reliance on the decision in **Sree Swayam Prakash Ashramam** and highlighted paragraph 26 which reads thus: _“26. …......................... We have already noted the findings arrived at by the Trial Court, on consideration of pleadings and evidence on record on the right of easement over `B' Schedule pathway by implied grant. The Trial Court on consideration of the evidence of both the parties recorded the finding that there was no evidence on_ R.S.A.No.748/2021 20 _record to show that either Yogini Amma or the defendants themselves until 1982 had objected to the plaintiff's use of `B' schedule pathway to access `A' schedule property. The Trial Court on consideration of the plaintiff's evidence and when the defendant had failed to produce any evidence, had come to the conclusion that the plaintiff was given right of easement by Yogini Amma as an easement of grant. Considering this aspect of the matter, although there is no specific issue on the question of implied grant, but as the parties have understood their case and for the purpose of proving and contesting implied grant had adduced evidence, the Trial Court and the High Court had come to the conclusion that the plaintiff had acquired a right of easement in respect of `B' schedule pathway by way of implied grant. Such being the position, we are not in a position to upset the findings of fact arrived at by the Courts below, in exercise of our powers under Article 136 of the Constitution of India. We also agree with the finding of the Trial Court that from the evidence and pleadings of the parties `B' schedule pathway was given to the plaintiff/respondent as an easement of grant. It is true that the defendant/appellant alleged that no implied grant_ R.S.A.No.748/2021 21 _was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants."_ ## 24. Paragraphs 11 and 15 of **Ramapriya** were highlighted which reads thus: _“11. Section 22 of the Act however, carries with it its own limitations and restrictions on the above stated right of the servient owner. One is that it has no application to cases where the right of way over the premises of servient owner has been ascertained by an express grant where a right of way of claimed on the basis of an express grant, question of unreasonableness of the right claimed does not arise._ _Xxxx xxxxx xxxxx 15. Neither in Ext.A3 nor in A1, specifications of the way is given. Nor does Ext.A3 or Ext.A1 give the width of the way. Though a plan is attached to Ext.A1, it is admitted by both sides that in the said plan also the way over which respondent is given right of access including_ R.S.A.No.748/2021 22 _vehicular traffic is not specifically demarcated. At the same time, notwithstanding the above it is not in dispute that a right of access was given to the respondent as per Exts.A3 and A1.”_ 25. Learned counsel for the defendant, in this context, placed reliance on paragraph 10 of the decision in **Ramapriya** which reads thus: _“10. Whitely Stokes, in “Anglo Indian Codes, Vol.I” at page 884 states that the law does not favour restrictions on rights of property and that easement being a restriction on rights of property, has to be exercised in a manner least onerous to the servient owner. The law permits the servient owner to confine the exercise of such right to a determinate part of the servient tenement when it is possible to do so without detriment to the dominant owner. That is the spirit underlying S.22 of the Act. It rests on the principle of unreasonableness in the claim of easement.”_ 26. **Thilakraj @ Thilakan** , paragraphs 18, 20, 22, 23, 24, 25, 27 and 29 were also drawn to my attention which reads thus: _18. Section 22 of the Indian Easements Act cautions that the dominant owner must exercise his right in_ R.S.A.No.748/2021 23 _the mode which is least onerous to the servient owner and when the exercise of an easement without detriment to the dominant owner can be confined to a determinate part of the servient heritable, it could be so done. Section 23 of the Act deals with right to alter mode of enjoyment. Section 24 of the Act deals with the right of dominant owner to do certain act for the full enjoyment of easement. Section 25 of the Act casts liability on the dominant owner to do necessary repairs for the preservation of easement. Section 27 of the Act stipulates that servient owner is not bound to do anything for the proper enjoyment of the right of easement._ _20. One must remember that easement is a precarious right. Law does not usually favour restricted use of one's own property. However, the law relating to easements creates a fetter on the exclusive and absolute use of property by its owner. The said law creates certain right in favour of a person to put to use the property belonging to another person. As a corollary the said law also insists that such exercise of enjoyment of right by the dominant owner must be least onerous to the servient owner._ _22. It is said “Common law is a living system of law reacting to new events and new ideas and so_ R.S.A.No.748/2021 24 _capable of providing the citizens with a system of practical justice relevant to the time in which they live”._ _23. There have been considerable changes in all spheres of life. Considering the vast changes that have occurred in both social and cultural fields, it is only proper that the courts adopt a practical approach to meet the current demands of the society. It will not be imprudent to observe that some of the provisions of Indian Easements Act (Act 5 of 1882) require changes. It is said that the law is an instrument of social engineering and social changes. Right to property is a valuable constitutionally recognised right._ _24. Law cannot be rigid and remain static. It has to be dynamic and has to device method within permissible limits to modulate relief to suit the present need and ensure that justice is rendered to all. The courts will have to adopt such means to render justice to people without doing violence to statutory provisions. Even assuming that in the case on hand, Section 22 of the Easements Act is not available to the appellants, that cannot tie down the hands of the court from granting relief to them while at the same time safeguarding the interest of the respondent also._ R.S.A.No.748/2021 25 _In fact, it is felt that it is the bounden duty of the court to rise to the occasion and find out reasonable grounds to grant relief._ _25. The attitude of the respondent in the case on hand islike Shaylock insisting for his pound of flesh. He is unwilling to accept the re-location of the way from the eastern side of the property of the appellants to the western side. As has already been observed, Exts.C2 and C2(a) do indicate that such shifting can be done thereby ameliorating the agony of the servient owner while at the time of ensuring the protection of the accrued right of the plaintiff in the suit._ _27. The principle that emerges from the above foregoing discussion is that there can be no impediment for the court to determine what is just and reasonable and grant decree accordingly. One may recall here that even if the way now claimed is shifted further to the east of the property of the defendants, it does not help the defendants and a considerable portion of the property will have to be kept idle. That certainly cannot be the object and purpose of the Act._ _29. Section 22 of the Indian Easements Act, as already stated, enables the servient owner to specify the route. The other provisions of the Act_ R.S.A.No.748/2021 26 _as already referred to deal with the rights and liabilities of dominant owner and servient owner. One fact is very clear. The exercise of right of easement by dominant owner is subject to the condition that it imposes least burden on the servient tenement owner and does not interfere with the right of enjoyment of his properties subject to the right of the dominant tenement owner.”_ 27. Section 22 of the Indian Easement Act, 1882 (in short 'the Act') expressly provides that the dominant owner must exercise his right in a mode which is least onerous to the servient owner and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. 28. PW3 as well as PW5, Scribe of Ext.A4 were examined from the side of the plaintiff to prove the width of the way. But, PW5 the Scribe, apart from admitting the hand writing in the same did not speak anything about the width of the way. PW3 who is a relative of the plaintiff stated that there was already a R.S.A.No.748/2021 27 way for taking autorickshaws and the agreement was executed consenting to provide a way for taking lorry. Though she further deposed that the stipulation in the agreement is a way through which lorry can be taken, admittedly by her it is not written so in the agreement and only description is a way for ingress and egress. She also gone to the extent of deposing that in the agreement it is stated that the width of the way is 5 meters. So, evidence of witnesses will not take us anywhere about the width of the way stipulated in Ext.A4. So also, when there is a written document not specifying the width of the way the court should be very cautious while analysing the oral testimonies of witnesses stating about the width of the way. 29. Though the plaintiff had an allegation in the plaint that the way portion claimed by them was lying in a low level at the time of purchase of the property and it is at their instance ,it was elevated and transformed into a way, that has been stoutly denied by the defendant. Plaintiff could not adduce any evidence to substantiate that contention also. So also, in Exts.C1 and C2 R.S.A.No.748/2021 28 Commissioner has reported the width of the way as 3.60 meters is based on the mere observation that it has been lying open and hence it has been taken as the way leading to the plaintiff's property. It is true that there is no construction or any other improvements in that portion but the Commissioners failed to note that construction was going on in the plaintiff's and defendant's property and the Commissioners specifically reported that a new gate is found to have been erected in the plaintiff's property. So, the contention of the defendant that space was left open for taking the building materials for construction in the plaintiff's property and hence he did not raise any objection in using that portion for taking the building materials seems to be probable and acceptable. 30. Plaintiff relied on Exts.C1, C1(a) and C2 reports to substantiate his contentions regarding existence of way as has been found by the courts below. C1, C1(a) are ex parte commission report and plan. Commissioner has noted the width of the way as 3.60 metres and it is also reported that it is lying R.S.A.No.748/2021 29 as a pathway and there is no obstruction from entering into the plaintiff's property through that way. It is also reported that the width of the gate erected on the eastern extremity of plaint item No.3 is 3.60 metres. But, the Commissioner also categorically stated in the mahazar that on the north western side of the plaintiff's property a new gate is seen erected and through the way situated on the northern side of the defendant's property one can enter into the plaintiff's property through the gate. Commissioner also reported that in plaint item Nos.1 and 2 properties two new houses are under construction. Admittedly, the property have been purchased by the plaintiff as well as defendant in the year July, 2007. Commissioner visited the property in August, 2008 which is almost after one year. In Ext.C2 Commission report taken at the instance of the plaintiff, the Commissioner reported that on the northern side of the defendant, property of 3.60 metres is lying without any structures and there are signs of taking vehicles in that area and it is also reported that 2.5 meters away from the north of way R.S.A.No.748/2021 30 towards south chips of measurement 1/4 inches to a height of one inch are laid and including the area where chips have been laid the way has 3.60 meters width. 31. Exts.C3 and C3(a) were subsequently filed by the Commissioner who visited the site at the instance of the defendant and demarcated the way as per the counter claim. The specific case of the defendant is that she is willing to provide a way of 1.8 metres, which, according to her is the agreed width of the way. In Ext.C3 report, Commissioner has demarcated counter claim A schedule property and counter claim B schedule property, that is the plaintiff's property. So, the specific case of the defendant is that the way noted by the previous Commissioners in Exts.C1, C1(a) and C2 report is the open space found in front of her house. The total width of that space is 4 metres and from that 3.60 meters have been demarcated as the way by looking at the measurement of the gate erected by the plaintiff in his property. Ext.C3 Commissioner's report is attached by a plan prepared by a Head Surveyor which shows that the R.S.A.No.748/2021 31 width of the area in front of the defendant's house in total is 4 metres. So, if this 3.60 meters is left apart to the way to the plaintiff as found by the courts below the distance from his building to the pathway would be only 40 cms. That would cause great inconvenience and miseries to the defendant to enjoy his property which was purchased by him for valuable consideration. Even though the learned counsel for the plaintiff would contend that car porch is subsequently constructed and not the main building learned counsel for the defendant would vehemently contend that the car porch is a part of the main building of the defendant. Commissioner's report also would not reveal that car porch is not part of main building. So, as rightly contended by the learned counsel for the defendant, if the way as granted by the courts below is retained, it will be just 40 cms from his residential house. I have already discussed while considering the ambit and scope of Ext.A4 that it does not specify the width of the way. It also does not expressly provides that a way having vehicular access would be provided to the plaintiff and what has R.S.A.No.748/2021 32 been consented is only to permit her to use the northern portion for ingress and egress. So, if at all there is any such understanding to take lorries through the said portion, definitely it would have find a place while executing the consent letter. So, on the basis of Ext.A4 the plaintiff cannot claim a way having a width of 3.6 metres through the property of defendant. But, at the same time, since there was a consent by the defendant to provide a way on the northern portion of her property definitely defendant is bound by such consent and has to provide a way with a reasonable width for ingress and egress to the plaintiff to her property. 32. So, as has been held in **Thilakraj** , the Court has to determine a just and reasonable width of the way which is least onerous to the defendant, the servient owner. 33. At the time of argument, learned counsel for the defendant would submit that his party is agreeable to provide a way at a width of 2 ft. In this context, it is also to be noted that the alleged way further proceeds towards east and at the time of R.S.A.No.748/2021 33 filing the suit the width of that way passing through the northern boundary of the plaintiff's property was 1.5 meters and it continues further towards east and at the time when Commissioner prepared Exts.C3 and C3(a) width of the way passing through the plaintiff's property is noted as 2 meters. I have already found that since Ext.A4 consent letter was executed by the defendant they are bound to provide some property for ingress and egress to the plaintiff. But the claim of the plaintiff for a way having width of 5 meters which has been found as 3.60 meters by the courts below is also seems to be highly onerous to the defendant. So also the space available in between the basement of the defendant's house and the northern boundary is only 4 meters as per Ext.C3 report and plan based on survey measurement. Though the learned counsel for the plaintiff would content that the width of the available space is 4.5 meters,it is against the proved facts. So on a broad analysis of facts and circumstances I am of the considered view that the width of item No.3 way can be fixed as 2.5 meters instead of 3.60 meters R.S.A.No.748/2021 34 found by the courts below. 34. In the result, the Regular Second Appeal allowed in part modifying the width of the way as 2.50 meters instead of 3.60 meters and consequential injunction is also modified restraining the defendants from causing any obstruction to the use of pathway having width of 2.50 meters and length of 17 meters through the northern side of plaint item No.2 property. In the facts and circumstances, parties shall bear their respective cost. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge