IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 RSA.No. 198 of 2008() --------------------- AS.102/2004 of SUB COURT, KASARAGOD OS.428/1998 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT : APPELLANT/DEFENDANT ------------------------------------ YOUSUF, S/O.KUNHALI MUKRI RESIDING AT CHUKRIYADKAM, MANGALPADY VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS: RESPONDENT/PLAINTIFF --------------------------------- MOHAMMAD, S/O.IBRAHIM BEARY RESIDING AT SALTAR MANZIL, ADKAM MANGALPADY VILLAGE AND POST KASARAGOD TALUK AND DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 198 OF 2008 =========================== Dated this the 17th day of March, 2007 JUDGMENT Defendant in O.S.428/1998 on the file of Munsiff Court, Kasaragod is the appellant. Respondent is the plaintiff. Respondent instituted the suit for recovery of possession on the strength of title. Plaint A schedule property originally belonged to Ibrahim Beary father of respondent under Exts.A1 to A3 registered sale deeds. On the death of the father, it devolved on the children including respondent. It was contended that for the marriage in the house of the appellant, as requested by him he was permitted to take vehicle through plaint A schedule property and after the marriage function was over it was closed and respondent and his younger brother went to Goa in connection with their business and the legal heirs of Ibrahim Beary were not available at the native place and taking undue advantage of their absence, R.S.A.198/2008 2 appellant trespassed and encroached the plaint schedule property six months prior to the institution of the suit and formed a road unlawfully through plaint A schedule property. It was contended that appellant has no right to construct a road through plaint A schedule property and respondent is entitled to recover possession of the same on the strength of title. 2. Appellant resisted the suit admitting that plaint schedule property originally belonged to Ibrahim Beary but respondent has no right over the same. It was contended that the property comprised in R.S.312/2 having an extent of 28 cents originally belonged to Kunhali Mukri Beary, father of appellant as per sale deed dated 27.8.1943 and after his death legal heirs including appellant got right over the property and his brothers released their right in favour of appellant and since then he has been in possession of the property and he constructed a residential house in that property. According to appellant, there was a R.S.A.198/2008 3 pathway through plaint A schedule property leading to the property of appellant 22 years back and at the time of construction of the house appellant widened the pathway into a road having a width of 10 feet and ever since appellant has been using that road as of right and as an easement and respondent has no right to recover possession of the same. It was contended that he has a right of easement by prescription and easement of necessity. Case of appellant that a road was formed for the marriage in the house of the appellant was denied. It was contended that title of respondent if any is barred by adverse possession and respondent is not entitled to the decree sought for. 3. Learned Munsiff on the evidence of PW1, Dws.1 and 2, CW1, Exts.A1 to A7, B1 to B10 and C1 and C2 dismissed the suit holding that respondent being one of the legal heirs of deceased Ibrahim Beary has title to the plaint schedule property and being a co-owner he is entitled to a decree for recovery of possession on the strength of title. R.S.A.198/2008 4 4. Learned Munsiff on the evidence found that appellant did not establish any right of way through plaint A schedule property and respondent has title to the property as a co-owner and title is not lost by adverse possession and is entitled to recover possession of the portion of the property through which a road is formed. The suit was decreed. Appellant challenged the judgment before Sub Court, Kasaragod in A.S.102/2004. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 5. Learned counsel appearing for appellant was heard. 6. The argument of the learned counsel is that in the plaint itself it was admitted that appellant was permitted to use a portion of plaint A schedule property as a road for a marriage in the house of the appellant and it was deemed by the appellant and the alleged permission was not established and R.S.A.198/2008 5 in such circumstances courts below should have accepted the case of appellant that he has been using the way which was widened to a road and appellant has prescribed a right of way by easement of prescription. Learned counsel also argued that there is no other pathway available to the property of the appellant and hence appellant is entitled to a right of way through plaint A schedule property by easement of necessity. 7. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 8. Eventhough appellant disputed the title of respondent, title of Ibrahim Beary, the father of respondent was admitted. It is also admitted the father of respondent is no more and on the death of the father his rights devolved on the children including respondent. Being a co-owner respondent is definitely entitled to institute a suit for recovery of possession on behalf of the other co-owners also. What is claimed by the R.S.A.198/2008 6 appellant was that he has a right of way through plaint A schedule property. A right of way by easement of prescription and also by easement of necessity was claimed. Claim for a way as a right of easement by necessity was rightly rejected by the courts below holding that there was no splitting up of the tenement and also for the reason that there is alternate way available to the plaint schedule property. Plaint A schedule property and the property of appellant was not parts of the property owned by the same person and subsequently separated by a transfer. Evidence also show that there is alternate way available to the property of appellant. In the light of these factual findings, appellant is not entitled to claim a right of way by easement of necessity. 9. Then the question is whether appellant has established a right of way by easement of prescription. What was claimed by appellant was that there was an original way through the plaint A schedule property leading to the house and at the R.S.A.198/2008 7 time of construction of the house, the way was widened into a road and for the last 22 years he has been using that road. Courts below on the evidence found that the way was not formed 22 years back. Even the report of the Commissioner shows the age of the road as only six years. In the light of the evidence, trial court found that appellant is not entitled to a right of way by easement of prescription also. That finding of the trial court was confirmed by the first appellate court on reappreciation of evidence. Those factual findings cannot be interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006