IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 RSA.No. 550 of 2011() --------------------- AS.131/2009 of III ADDL. DISTRICT COURT, KOLLAM OS.58/2003 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/ FIRST RESPONDENT/ PLAINTIFF : ---------------------------------------------------- T.BOSE, S/O.THANKAPPAN, PARIPPALLY PURAYIDAM, KC VI/762, ULIYAKOVIL CHERRY, KADAPPAKKADA, KOLLAM 691008. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT/ APPELLANTS & RESPONDENTS 2 TO 10/ DEFENDANTS ----------------------------------------------------------------------------- 1. T.P.KUTTAPPAN, S/O.S.M.PADMANABHAN H.NO.132, JANANI NAGAR, KADAPPAKKADA, KOLLAM 691008. 2. K.N.RAVIKUMAR, H.NO.1, KURUMPELIL DEVASWOM TRUST, JANANI NAGAR, KADAPPAKKADA, KOLLAM 691 008. 3. PUSHPADHARMAN, PUTHENPURA VADAKKATHIL, MC VI/753, KADAPPAKKADA, KOLLAM 691 008. 4. PONNAMMA, W/O.SUKUMARAN, PUTHENPURA VADAKKATHIL, MC VI/755, KADAPPAKKADA, KOLLAM 691 008. 5. VIJAYAN, S/O.KUNJAN, PUTHENPURA VADAKKATHIL, MC VI/754, KADAPPAKKADA, KOLLAM 691 008. 6. LEELA, W/O.SAHADEVAN, PUTHENPURA VADAKKATHIL, MC.VI/754, KADAPPAKKADA, KOLLAM 691 008. 7. BHADRAN, S/O.NANU, PUTHENPURA VADAKKATHIL, MC VI/520, KADAPPAKKADA, KOLLAM 691 008. 8. B.RAJEEVAN, PRESIDENT, SNDP SAKHA YOGAM NO.493, ASHA BHAVAN, H.NO.91, AKSHAYA NAGAR, KADAPPAKKADA, KOLLAM 691 008. 9. K.RAJENDRAN, SECRETARY, SNDP SAKHA YOGAM NO.493, DHRONA BHAVAN, H.NO.164, VRUNDHAVAN NAGAR, KADAPPAKKADA, KOLLAM 691 008. 10. RAJENDRAN, ADMINISTRATOR, SNDP SAKHA YOGAM NO.493, KUMARAVILASOM, ULIYAKOVIL, KADAPPAKKADA, KOLLAM 691 008. 11. SADIDHARAN, ASST.ADMINISTRATOR, KUMARAVILASOM SNDP SAKHA YOGAM NO.493, VLIYAKOVIL, KADAPPAKKADA, KOLLAM 691 008. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.550 OF 2011 --------------------------------------------- Dated 3rd June, 2011 JUDGMENT Plaintiff in O.S.58/2003 on the file of Munsiff court, Kollam is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for declaration of right of way by easement of prescription and consequential injunction contending that plaint A schedule property belongs to him and plaint B schedule property is the only way available to the plaint A schedule property and he and his predecessors have been using plaint B schedule way without interruption for more than 35 years and therefore, he has a right of way by easement of prescription over plaint B schedule RSA 550/11 2 property. Respondents 1 and 2 resisted the suit contending that appellant has no right of way over plaint B schedule property as contended by the appellant. Respondents 3 to 6 adopted the written statement of respondents 1 and 2. 2. Learned Munsiff on the evidence of Pws.1 to 4, Dws.1 to 7, Exts.A1 to A11, B1 to B3 and C1 series, granted a decree upholding the right of easement claimed over plaint B schedule property and restrained the respondents from causing obstruction to the same. Respondents 1 and 2 challenged the judgment before District court, Kollam in A.S.131/2009. Learned Additional District Judge on re-appreciation of the evidence, found that the necessary ingredients of right of easement by prescription was not pleaded and therefore, the appellant is not entitled to the decree RSA 550/11 3 sought for. Appeal was allowed and the suit was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Learned counsel made available a copy of the plaint and submitted that though it has not been specifically pleaded that the appellant and his predecessors have been using the plaint B schedule way openly and peaceably and as of right and as an easement, a reading of the plaint establishes that the case is that plaint B schedule property is being used openly and peaceably and not with any permission, but as of right and as an easement and in such circumstances, first appellate court was not justified in reversing the findings of the trial court, based on the absence of pleading. RSA 550/11 4 5. On going through the copy of the plaint, it cannot be said that all the necessary ingredients constituting a right of easement and prescription are pleaded. Though it is contended that plaint B schedule property is being used for the last 35 years without interruption, it is not specifically pleaded that it was as of right or as an easement. In such circumstances, finding of the first appellate court is justifiable. Hence I find no substantial question of law involved in the appeal. The learned counsel appearing for the appellant submitted that the dismissal of the suit may not operate as a bar for instituting a fresh suit incorporating all necessary ingredients of the right of easement by prescription as the suit is dismissed for want of proper pleadings. As no substantial question RSA 550/11 5 of law is involved in the appeal, it is dismissed making it clear that dismissal of the suit is not a bar to institute a fresh suit with the necessary pleadings. M.SASIDHARAN NAMBIAR, JUDGE. uj.