IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 RSA.No. 254 of 2008 ----------------------- AS.130/2003 of DISTRICT COURT, PATHANAMTHITTA OS.568/1996 of MUSNIFF COURT,ADOOR .................... APPELLANTS: APPELLANTS/DEFENDANTS ---------------------------------------------- 1. RADHAKRISHNAN, S/O GOPALAN NAIR, AGED 49 YEARS, SASTHAMMELETHIL VEEDU, VAYALA MURI, ERATHU VILLAGE, ADOOR TALUK. 2. JAYASREE RADHAKRISHNAN W/O RADHAKRISHNAN SASTHAMMELETHIL VEEDU, VAYALA MURI, ERATHU VILLAGE ADOOR TALUK. BY ADV. SRI.R.GIREESH VARMA RESPONDENTS: RESPONDENT/PLAINTIFF ---------------------------------------------- CHINNAMMA, D/O RAHELAMMA AGED 59, VAKKAVILAYIL, PUTHUSERYBHAGOM MURI, ERATHU VILLAGE, ADOOR TALUK. BY ADV. SRI. K.SHAJ SRI.SAJJU.S THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. --------------------------------------------------------- R.S.A. No 254 of 2008 --------------------------------------------------------- Dated this the 18th July 2008 JUDGMENT The first defendant and additional third defendant who are husband and wife assailed the concurrent decree passed by the courts below in O.S.No 568 of 1996 of the Munsiff's Court, Adoor. The suit was filed by the respondent for a decree declaring her right of easement by prescription over the B schedule pathway which runs through the defendant's property connecting the plaint schedule property belonging to her with the public road on the north running through the defendant's property which lies in between. The appellants-defendants disputed the existence of pathway alleged by the plaintiff. They admit that plaint A schedule property is bounded on the eastern and northern sides by the property belonging to them and also that there is a panchayat road running through the northern side of the property of the defendants. Though the defendant has contended in the written statement filed before amendment of the plaint that there never did exist a pathway as described as B schedule for passage of the plaintiff and that plaintiff is having access to her RSA 254/08 2 property through other means. It is not specified as to which is that pathway especially when they admit in the written statement that their property is both on the eastern and northern sides of plaint A schedule property and that the panchayat road runs along the northern side of their property. Further in the additional written statement filed on 03.11.2000 the case of the defendants is that the first defendant has not enclosed the pathway that was being used by the plaintiff and that through the said pathway the plaintiff is having her passage uninterruptedly. According to counsel for the appellants, the contention that they have not enclosed the pathway and that plaintiff is having passage to the plaint schedule property through the said pathway uninterruptedly is mentioned in the written statement with reference to the pathway through which the defendants contend that the plaintiff is having access to the scheduled property. It is worthy to note that plaintiff has no case that the defendant is enclosing any other pathway used by her other than B schedule pathway and therefore what could have been referred to in the written statement is only the B schedule pathway and not any other pathway. This is all the more so because plaintiff is not stated to have access from the schedule property to any other RSA 254/08 3 road by any other means, either towards west or towards south through anybody else's property or that there exists any other road either on the western side or on the southern side of plaint A schedule property. It was in the above circumstance that the trial court passed a decree in favour of the plaintiff-respondent and that was concurred with by the first appellate court while dismissing the appeal filed by the present appellants. Thus there is no merit in this R.S.A and there is no question of law and much less any substantial question of law arising for consideration by this court in this Second Appeal. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 18/07/2008 en [true copy]