IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 RSA.No. 1000 of 2011() ---------------------- AS.97/2008 of SUB COURT, MUVATTUPUZHA OS.282/2007 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT/APPELLANT/DEFENDANT -------------------- THOMAS JOSEPOH, S/O.THOMAS, AGED 52 YEARS, R/A.MANIYAMMAKKAL HOUSE, ALANADU KARA BHARANANGANAM VILLAGE, MEENACHIL TALUK BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.DHANYA CHANDRAN RESPONDENT(S): --------------- 1. ROY THOMAS, S/O.THOMAS AGED 37 YEARS, MANIYAMMAKKAL HOUSE, ALANADU KARA BHARANANGANAM VILLAGE, MEECACHIL TALUK, PIN-686578. 2. TOMY THOMAS,S/O.THOMAS, AED 41 YEARS, MANIYAMMAKKAL HOUSE, ALANADU KARA BHARANANGANAM VILLAGE, MEECACHIL TALUK, PIN-686578. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1000 of 2011 ............................................ DATED THIS THE 27th DAY OF SEPTEMBER, 2011 JUDGMENT Defendant in O.S.282 of 2007 on the file of Munsiff Court, Muvattupuzha is the appellant. Plaintiffs are the respondents. The suit was filed seeking a decree for permanent prohibitory injunction restraining the appellant from causing obstruction to the plaint C schedule way. Respondents contended that plaint A and B schedule properties belong to the respondents and plaint C schedule property is a road starting from Thodupuzha - Oonnukal road and ending in the plaint B schedule property and passing through the property of appellant. Appellant and respondents are brothers. The properties of the appellant and respondents originally belonged to Kondooparambil family. Respondents purchased the property from Mariamma, the wife of Joseph Sebastian who was examined as PW2 and appellant purchased the property from her husband Joseph Sebastian. Joseph Sebastian purchased the property of appellant in 1968. Mariamma purchased plaint A and B schedule properties in 1975. RSA 1000/2011 2 Respondents contended that in 1975 plaint C schedule road was extended upto plaint A and B schedule properties and PW2 and thereafter respondents have been using that way as of right and as an easement continuously without any interruption and hence they have a right of way by easement of prescription and appellant is not entitled to cause any obstruction to the way. Appellant resisted the suit contending that the way was not extended to plaint A and B schedule properties in 1975 as alleged and no way exists as plaint C schedule property and a temporary way ending at a distance of 30 feet from the southern boundary of the property of appellant was constructed for the use of appellant and there is no continuation of the way to the plaint A and B schedule properties and respondents have no right of way by easement of prescription or necessity. It was contended that plaint C schedule road was constructed in collusion with the defendants in O.S.457 of 2006 filed by the appellant and suppressing the real facts, the suit was instituted and respondents are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PWs 1 and 2, DW1, Exts.A1 to A5 and C1 and C1(a) found that plaint C schedule way RSA 1000/2011 3 as demarcated by the Commissioner in Ext.C1(a) plan exists and respondents established a right of way through plaint C schedule property and appellant is not entitled to cause any obstruction to the way. A decree was therefore granted restraining the appellant from causing obstruction to the use of plaint C schedule way as demarcated by the Commissioner in Ext.C1(a) plan and Ext.C1(a) was made part of the decree. Appellant challenged the decree and judgment before Sub Court, Muvattupuzha in A.S.97 of 2008. 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. The argument of the learned counsel is that courts below did not properly consider the evidence on record. It was argued that the evidence do not establish a right of easement by prescription over plaint C schedule way as found by the courts below. It was argued that plaint A and B schedule properties as well as the property of the appellant originally belonged to Joseph Sebastian and his wife Mariamma and plaint A and B schedule properties belonging to Mariamma was purchased by the respondents only RSA 1000/2011 4 in 1994 and therefore respondents could not have claimed a right of way by easement of prescription and the description of the plaint C schedule property is not correct and hence on the evidence, the decree granted by courts below is not sustainable. 4. On going through the judgments of courts below and hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the learned counsel vehemently argued that there is no evidence to prove that respondents have established a right of way by easement of prescription as respondents obtained the property under Ext.A1 and Ext.A2 only in 1994, courts below on the evidence, rightly found that respondents though purchased the property in 1994 their predecessor, PW2 was the owner of plaint A and B schedule properties and evidence of PW2 establishes that plaint C schedule way was the only access available to the properties and since 1975 she has been using the plaint C schedule way as of right without any interruption and respondents continued to use the way since 1994 and hence respondents are entitled to right of way which was available to the predecessor in interest of respondents viz, Mariamma who obtained the right in 1975. The RSA 1000/2011 5 question whether respondents and their predecessor PW2 have been using the plaint C schedule way continuously without interruption since 1975 is a finding of fact. On the evidence, learned Munsiff found that respondents have established that respondents and their predecessors have been using the plaint C schedule way as of right and as an easement for more than twenty years prior to the institution of the suit without interruption openly and peacably. That finding was confirmed by the first appellate court in A.S.97 of 2008. The finding is in accordance with the evidence. I find no substantial question of law involved in the appeal. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk