1. The appeal is preferred against the concurrent findings in a suit for mandatory injunction and prohibitory injunction by the defendants. The original defendant is no more and his legal heirs have been impleaded in the party array.

2. An extent of 0.57 acres of land in Re- Sy.No.484/1D3pt of Vorkady village in the A schedule property obtained by the plaintiff by a release deed. Defendant is the brother of the plaintiff. According to the plaintiff, there is an 18 links pathway between the properties of the parties and thus the defendant was trying to reduce the width of the pathway. Hence, the suit. Defendant entered appearance and contested the suit and contended that there is no pathway set up in the document for the plaintiff and therefore plaintiff has no right. It was further stated that, if a road access is provided to the suit property, it will adversely affect the utilization of the plots allotted to the defendant and the other brother. The defendant further contended that 18 links pathway is in his property and therefore, he is entitled to do such activities in terms of his proprietary rights. Before the trial court, the Advocate Commissioner was appointed. The Advocate Commissioner, after inspection, filed Ext.C1 report. In Ext.C1 report, the Advocate Commissioner has reported that there is a clear cut pathway having a width of 18 links. The Advocate Commissioner also reported that the plaintiff is having access to his property only through this pathway and there is no other access. It was further reported that the defendant had constructed a small flat abutting the compound wall which protrudes as one feet into the pathway and he has placed certain flower pots in the said flat. The trial court, on appreciation of the oral and documentary evidence came to the conclusion that the plaintiff was entitled to the reliefs especially since there was no objection given by the defendant in the report of Advocate Commissioner. Accordingly, the suit was decreed. Aggrieved, the defendant/appellant filed A.S.No.95 of 2008 before the Sub Court, Kasaragod. The appeal was dismissed by judgment dated 11.11.2011 and hence, the present appeal.

3. The appeal was admitted on 26.06.2012 and the following substantial questions of law were framed:

                  “(1) Were the Courts below justified in ignoring the fact that no road as claimed in the suit is provided in the document of title while decreeing the suit?

                  (2) Were the Courts below justified in accepting the claim for road access based on a contention of mediation without any documentary evidence or pleading regarding the same?”

4. Heard Sri.Srinath Ganesh, learned counsel appearing for the appellant and Sri.T.Madhu, learned counsel appearing for the respondent.

5. Learned counsel for the appellant submitted that originally the suit in the plaint, only one item of property was included and soon after the Advocate Commissioner filed a report, the suit was amended and three survey numbers were incorporated. But, however, the plaintiff failed to incorporate the schedule, over which, the mandatory injunction was sought for. It was further pointed out that going by the recitals of Ext.A1, the release deed, the plaintiff cannot have any right over the 18 links pathway and therefore, the courts below erred in holding that the plaintiff has a right to access to the pathway in question.

6. Per contra, Sri.T.Madhu, learned counsel appearing for the respondent/plaintiff supported the findings rendered by the courts below and contended that the findings are purely based on appreciation of evidence and does not call for interference by this Court under Section 100 of the Code of Civil Procedure, 1908. He further pointed out that the Advocate Commissioner has specifically found that certain activities were undertaken by the plaintiff which had the effect of reducing the width of the pathway.

7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and records of the case.

8. The primary question to be considered is whether the plaintiff has a right of way through 18 links road which is formed inside in the property. It is true as contended by the learned counsel for the appellant that a reading of Ext.A1 release deed would not show any right of access over the path way in question. But, it must be remembered that the property was given to the plaintiff on execution of the undivided shares in respect of the property in question. The report of the Advocate Commissioner specifically shows that there is a clear road access having an 18 links width. No explanation is caused at the side of the defendant as regards the formation of the aforesaid road. Therefore, from the evidence adduced by the plaintiff, it is clear that the road was formed for access of the property held by the respective sharers.

9. As regards the claim for mandatory injunction, it has come out in evidence that certain activities were done by the original defendant which had the effect of reducing the width of the pathway. Of course, the activities undertaken would qualify as trivial constructions since they are not of the permanent nature. What has been done is the construction of a flat having a width of one meter in order to erect certain flower pots. But, it must be remembered that the effect of such construction is that, it protrudes into the 18 links pathway and as an effect, reduced the width of the pathway. The argument now raised is that the claim for mandatory injunction and prohibitory injunction is not supported by any evidence. However, this Court is unable to accept the same. It has come out in evidence that the 18 links pathway is the only access to the plaintiff’s property. Therefore, even if a case of a grant is not made, the parties had agreed themselves to had access to the 18 links pathway in question. If that be so, it is a case where the parties have entered into a mutual understanding for the use of the pathway and, if as contended by the defendant, the right of the plaintiff over the pathway is obliterated, necessarily, the plaintiff’s entry into the plaint schedule property will be blocked. In that view of the matter, this Court is of the considered view that the findings rendered by the courts below are purely based on appreciation of facts and does not call for any interference in exercise of the powers under Section 100 of the Code of Civil Procedure, 1908.

10. Resultantly, the substantial questions of law are answered against the appellant as follows:

                  (1) Merely because the road, as claimed, is not mentioned in the document, that by itself does not denude the plaintiff from asserting the easementary right over the 18 links pathway as reported by the Advocate Commissioner.

                  (2) The existence of the pathway which has a direct entry into the respective properties of the plaintiff and defendant, is a clear indication that the parties themselves had agreed upon providing access to the respective sharer’s property. That qualify itself as a binding agreement between the parties.

                  Resultantly, this Court finds that the judgments rendered by the courts below does not call for any interference. Accordingly, the appeal fails and the same is dismissed.