IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 SA.No. 622 of 1997(G) --------------------- AS.167/1994 of DISTRICT COURT,KOLLAM OS.725/1990 of MUNSIFF'S COURT, KARUNAGAPPALLY .................... APPELLANT(S): APPELLANTS - PLAINTIFFS: ------------------------------------------------------------------- 1. PAPPU ASSARI RAGHAVANASSARI, CHITTALAKATTUTHEKKATHIHL, CHITTOOR MURI, PANMANA VILLAGE. 2. NANI CHELLAMMA,....DO..DO.... BY ADVS. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND. RESPONDENT(S): RESPONDENTS - DEFENDANTS: --------------------------------------------------------------------------- *1. CHELLAPPANASSARI, CHITTALAKKATTU VEEDU, CHITTOOR MURI, PANMANA VILLAGE. ( D I E D) LR'S RECORDED AND ADDL.RESPONDENTS IMPLEADED: 2. CHELLAPPANASSARI SIVADASAN, ..DO... 3. CHELLAPPANASSARI RADHAKRISHNAN, ..DO... *ADDL.RESPONDENTS IMPLEADED: R4. GOPALAKRISHNAN ACHARI, CHITTALAKKATTU VEEDU, CHITTOOR MURI, PANMANA VILLAGE, CHAVARA. Kss ..2/- ..2... SA.NO.622/1997 R5. C.RAJAGOPALAN ACHARI, CHITTALAKKATTU VEEDU, CHITTOOR MURI, PANMANA VILLAGE, CHAVARA. R6. J. RADHAMMA, ...DO.... R7. J.VIJAYAMMA, ...DO.... R8. J.GEETHA, ..DO.... *IT IS RECORDED THAT RESPONDENTS 2 AND 3 IN THE S.A. ARE THE LRS OF THE DECEASED 1ST RESPONDENT AND THE ADDL.RESPONDENTS 4 TO 8 ARE IMPLEADED AS PER ORDER DTD. 25/05/98 IN CMP NO.617/98. R2 TO R6 BY ADV. SRI.K.K.CHANDRAN PILLAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- S.A No.622 of 1997 -------------------------- Dated this the 28th July, 2010 J U D G M E N T Plaintiffs, who were non-suited by the court below in O.S No.725 of 1990 and whose appeal was dismissed , are the appellant before this Court. 2. Plaintiffs obtained plaint schedule property as per Ext.A1 dated 12.6.1972. Defendants are residing on the northern side of plaint schedule property. According to the plaintiffs, they have means of access from the eastern and western side of their property. 3. The suit was laid on the allegation that defendants are trying to cut open a new way through plaint schedule property destroying its boundaries and cutting certain trees standing therein. Defendants have no right to do so. Plaintiffs apprehend further trespass and hence the suit. 4. Defendants entered appearance and contested the suit. They pointed out that pathway lying along the eastern side of the plaint schedule property and that the pathway lies outside the boundary of the plaint schedule S.A No.622 of 1997 2 property. They clearly pointed out that they have no intention to trespass into plaint schedule property or to cut open a new pathway though the plaint schedule property. They have right to use the pathway lying on the eastern side of plaint schedule property. On the basis of the same, they prayed for dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and Exts. A1 to A4 were marked from the side of the plaintiffs. Defendants had examined DWs 1 and 2. Ext.C1 is the commission report. 6. The trial court on an appreciation of evidence found that going by the commission report, there is a way running along the eastern boundary of plaint A schedule property which leads to the property of the defendants on the northern side. The commission report did not indicate that there was tampering of the plaintiffs properties by the defendants. Finding that plaintiffs have not been able to prove the cause of action, the suit was dismissed. S.A No.622 of 1997 3 7. The matter was carried in appeal as A.S.167 of 1994 before the District Court, Kollam. The appellate court on an independent re-evaluation of the evidence in the case found that the apprehension made by the plaintiffs is baseless and there was no cause of action for the suit. Accordingly, the appeal was dismissed confirming the judgment and decree of the trial court. 8. Learned counsel appearing for the appellants pointed out that defendants have no manner of right to use the pathway lying along the eastern boundary of the plaint schedule property and they have no right to cut open a new way through the plaint schedule property. Plaintiffs apprehend that defendants will cut open a new pathway through their property. 9. Both the courts below have found that the apprehension is unfounded since the defendants contended that there is a pathway through the eastern side of the plaint schedule property and the said pathway is being used by them as a means of access to the panchayat road. The way runs along the eastern boundary of the S.A No.622 of 1997 4 plaint schedule property and ends on the eastern boundary of the defendants property. 10. Defendants in the written statement have categorically stated that they have no intention to trespass into the property of the plaintiff or to cut open a new pathway. Both the courts below found that there is no evidence to show that the apprehension expressed by the plaintiffs is true. There is no evidence to show that there was any attempt from the side of the defendants to cut open a new pathway through the plaint schedule property or to even tamper with the boundaries as alleged in the plaint. The court belows were justified in reaching their conclusions. As rightly pointed out by the courts below , plaintiffs cannot raise any objection to the use of the pathway as long as it is not through the property of the plaintiffs and they did not interfere with the enjoyment of property by the plaintiffs. The statement in the written statement that they have no intention to cut open a new entry through the plaint schedule property is recorded. S.A No.622 of 1997 5 No grounds are made out for by this Court to interfere with the judgment and decree of the courts below since it is not shown that the findings of the lower appellate court are either perverse or unwarranted by the evidence on record. No substantial questions of law arose for consideration in this appeal. This appeal is without merits and accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma