IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 RSA.No. 386 of 2011() --------------------- AS.52/2009 of ADDL.SUB COURT, THALASSERY OS.343/2007 of PRINCIPAL MUNSIFF COURT, KANNUR .................... APPELLANT/APPELLANT/PLAITNIFF ------------------------------------------------- NELLIYOTTU PUTHAN VEETIL RANJITH, S/O.KANNAN, AGED 40 YEARS, PRINTER, RESIDING AT CHIRAKKAL AMSOM, ALAVIL DESOM, KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR RESPONDENT(S): RESPONDENTS/DEFENDANTS ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KANNUR. 2. THE DISTRICT DEVELOPMENT OFFICER FOR SCHEDULED CASTE, REPRESENTED BY IT'S DEVELOPMENT OFFICER, CIVIL STATION, KANNUR-2. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.386 OF 2011 ............................................ DATED THIS THE 2nd DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.No.343 of 2007 on the file of Munsiff Court, Kannur is the appellant. Defendants are respondents. Suit was filed for a permanent prohibitory injunction contending that plaint A schedule property belongs to them and to the north of plaint A schedule property lies a 9 feet road and that road was being used from time immemorial by the inhabitants as of right without obstruction and continuously and nobody has a right to obstruct the passage and respondents are attempting to construct a wall causing obstruction to the way and therefore a decree is to be granted restraining the respondents from causing obstruction to plaint B schedule road. Respondents resisted the suit contending that the predecessor of the appellant had instituted O.S.492 of 2003 claiming the very same relief and by Ext.B2 decree and Ext.B3 judgment dated 28.7.2005, suit was dismissed and no appeal was filed and issue No.1 therein is exactly the same issue and the decree is binding on appellant and therefore the suit is to RSA 386/2011 2 be dismissed. 2. Learned Munsiff, on the evidence of Pws 1 and 2, Exts.A1 and A2, B1 to B4, C1 and C2 dismissed the suit finding that the predecessor in interest of appellant had filed O.S.492 of 2003 claiming a right of easement by prescription as claimed by appellant herein and Ext.B1 plaint and Ext.B3 judgment establish that the same right was claimed in the suit and it was dismissed and the judgment is binding on the appellant and therefore appellant is not entitled to the decree. Appellant challenged the judgment before Sub Court, Thalassery in A.S.52 of 2009. Learned Sub Judge, on reappreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. Appellant is claiming a right of way over plaint B schedule road alleging that he and his predecessor have been using that way for the last several years and therefore they have a right of way by easement of prescription. Appellant obtained the property under Ext.A1 only in 2004. Therefore, unless the appellant could tag on the usage of his predecessors, he cannot claim a right of RSA 386/2011 3 easement by prescription. The predecessor of appellant admittedly instituted O.S.492 of 2003 claiming the very same right of way. Though appellant purchased the property during the pendency of the suit he did not get himself impleaded in that suit. Ext.B2 and B3 establish that negativing the contentions of the predecessor in interest of appellant, the suit has been instituted and it has become final. Courts below rightly found that when appellant is claiming right under the plaintiff in O.S.492 of 2003, Ext.B2 judgment operates as res judicata as it is the very same right which is claimed by the appellant, the successor in interest of the plaintiff in O.S.492 of 2003. In such circumstances, courts below rightly dismissed the suit. I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk