IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 RSA.NO. 921 OF 2008() --------------------- AS.99/2007 OF SUB COURT, PERUMBAVOOR OS.36/2004 OF MUNSIFF COURT, KOLENCHERRRY .................... APPELLANT – APPELLANT – ADDITIONAL DEFENDANT NO.3: ---------------------------------------- VARGHESE, AGED 38 YEARS, S/O PALLY, PANICHIKUZHIYIL HOUSE, KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE, BY ADV. SRI.LAL GEORGE RESPONDENT(S) – RESPONDENTS – PLAINTIFFS: ----------------------------------------- 1. POULOSE, AGED 66 YEARS, S/O VARGHESE, MURIYAMCHERIL HOUSE, KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE. 2. S.K. POULOSE, AGED 58 YEARS, S/O KURIAKOSE, SRAMBICKAL HOUSE, KARUKAPPILLY KARA, AIKKARANADU SOUTH VILLAGE. 3. K.S. VARKEY, @ KUNJAPPU, AGED ABOUT 58 YEARS, S/O SKARIA, KURUPPANCHERI HOUSE, KARUKAPILLY KARA, AIKKARANADU SOUTH VILLAGE, THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2009 ALONG WITH RSA NO.966 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NOS.921 and 966 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of November, 2009 J U D G M E N T ---------------------- These Second Appeals arise from common judgment and decree of learned Sub Judge, Perumbavoor in A.S. Nos.99 and 98 of 2007 arising from common judgment and decree in O.S. Nos.36 and 63 of 2004 of the learned Munsiff, Kolencherry. O.S. No. 63 of 2004 concerned declaration of right of easement by way of prescription and consequential reliefs over the disputed “thondu” as the plaintiff in that suit say and “trench” as defendant No.2 in that suit would reply. Defendant No.2 in O.S. No.63 of 2004, alleging that plaintiff and defendant No.1 are colluding to defeat him and attempting to trespass into his property filed O.S. No.36 of 2004 seeking decree for prohibitory injunction. He claimed that the trench (described in O.S. No.63 of 2004 as 'thondu') was formed for protection of pineapple cultivation in his land from cattle trespass. Trial court found that plaintiff in O.S.No.63 of 2004 failed to establish his claim of right of easement by way of prescription and dismissed O.S. No.63 of 2004. O.S. No.36 of 2004 was decreed and prohibitory injunction was granted. Plaintiff in O.S. No.63 of 2004 who is also additional defendant No.3 in O.S.No.36 of 2004 preferred appeals which learned R.S.A. Nos.921 & 966 of 2008 -: 2 :- Sub Judge dismissed. Hence these Second Appeals at the instance of plaintiff in O.S. No.63 of 2004 who is also additional defendant No.3 in O.S.No.36 of 2004 raising by way of substantial question of law whether on considering the evidence on record courts below went wrong in negativing the claim of right of easement by way of prescription? It is contended by learned counsel for appellant that existence of the disputed thondu for about 80 years is admitted by contesting defendant who is the plaintiff in O.S. No.36 of 2004 and that regarding its user by the plaintiff and his predecessors-in-interest evidence has been given by P.W2 who was aged about 90 years at the time of giving evidence. According to learned counsel courts below ought to have accepted his evidence. 2. I shall refer to the parties as plaintiff and defendants as in O.S. No.63 of 2004 for convenience. Plaint A schedule property therein belonged to plaintiff as per sale deed Nos.6236 and 6233 of 2004. Property of defendant No.1 is on the north and that of defendant No.2 is on the east of plaint A schedule. The disputed thondu, according to plaintiff starts from Karukappilly-Kadamattom road going along east of property of defendant No.2 in the north-south direction and reaches the north eastern corner of plaint A schedule property. That thondu has a width of 2.5 metres and length of 97 metres. Plaintiff says that the thondu is in existence for more than 80 R.S.A. Nos.921 & 966 of 2008 -: 3 :- years and by continuous, open user as of right without interruption for more than 80 years by himself and predecessors-in-interest, he has acquired a right of easement by way of prescription which the defendants are attempting to negative and hence the suit. Defendant No.2 contended that there is no such thondu extending upto north eastern corner of the plaint A schedule property and that on the side of his property, he constructed a trench to prevent cattle trespass at a time when he had cultivated his property with pineapple. It is incorrect to say that the trench was used by anybody for ingress and egress. Plaintiff gave evidence as P.W.1 and testified to his case. P.W.2 is a neighbour aged about 90 years at the time of giving evidence and supported the case of plaintiff. As pointed out by the learned Munsiff in answer to a leading question in chief examination P.W.2 stated that plaintiff and predecessors-in-interest were using the disputed thondu since long for access to plaint A schedule property. But in cross-examination he stated that plaint A schedule originally belonged to K.S.Varkey, then to his wife, Eliyamma Varkey and then to their daughter and they used to enter into property from the western side. Courts below found that plaintiff failed to adduce evidence to prove the alleged user of the thondu by any of the predecessors-in-interest and at any rate for the statutory period so that a right of easement is acquired by way of prescription. On the R.S.A. Nos.921 & 966 of 2008 -: 4 :- other hand, there is evidence of defendant No.2 as D.W.1. He gave evidence in support of his contentions and disputed existence of thondu as claimed by the plaintiff. P.W.3 is the Advocate Commissioner who prepared Ext.C3, report. She reported in Ext.C3 and testified that so much of the portion of the land (in plaint A schedule) used for entry from the plaint B schedule (disputed thondu) has oldness of only one year. Courts below observed that the said report corroborates the version of defendant No.2 as regards the alleged user of the thondu by the plaintiff and his predecessors-in- interest. It is admitted by the plaintiff as P.W.1 that after he purchased plaint A schedule in the year 2004 he cleared the chal (disputed thondu) concerning which defendant No.2 filed a complaint to the police. From the above evidence courts below observed that if that be the situation version of plaintiff regarding the alleged user of the thondu for the statutory period cannot be accepted. D.W.2 is a surveyor (who retired from Survey Department) who prepared Ext.B5, plan in the year 1971. Exhibit B5 does not show existence of any such thondu (or trench as the case may be) as described in plaint B Schedule. It is the version of D.W.2 that any pathway having a width more than two metres will be shown in the resurvey. That means in spite of the disputed thondu having width of 2.5 metres as claimed by the plaintiff Ext.B5 prepared at the time of re-survey did not show R.S.A. Nos.921 & 966 of 2008 -: 5 :- existence of any such thondu or trench as the case may be which was being used as a way. In Exts.C1 and C2 Advocate Commissioner has pointed out that the eastern portion of the disputed thondu (or trench) does not even join Karukappilly-Kadamattom road. Plaintiff did not examine any of his predecessors-in-interest to prove alleged user of the thondu by any of them. Evidence on record would show that attempt was made to make use of the thondu (or trench as the case may be) after plaintiff purchased his property in 2004. It is on the above circumstances that courts below negatived the claim of easement by way of prescription. Consequence was dismissal of O.S. No.63 of 2004. Claim of right made by the plaintiff in O.S.No.63 of 2004 and in his written statement as additional defendant No.3 in O.S. No.36 of 2004 gave a reasonable apprehension for defendant No.2 in O.S.No.63 of 2004 to file O.S. No.36 of 2004 and seek injunction. Decision of the courts below rests on proper appreciation of evidence which involved no substantial question of law as suggested. The Second Appeals are dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. Nos.921 & 966 of 2008 -: 6 :- THOMAS P.JOSEPH, J. =================== R.S.A. NOS.921 & 966 OF 2008 =================== J U D G M E N T 4TH NOVEMBER, 2009