IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 RSA.No. 665 of 2007() --------------------- AS.259/2006 of DISTRICT COURT,KOLLAM OS.86/1993 of MUNSIFF COURT, PUNALUR .................... APPELLANTS/APPELLANTS/ PLAINTIFFS. ------------------------------------------------------ 1. RAGHAVAN, S/O.PADMANABHAN, ELAPPPUMKOTTU PADINJARE PUTHEN VEEDU, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. (DIED). 2. KUMARAN,S/O. PADMANABHAN, ELAPPUMKOTTU PADINJARE PUTHEN VEEDU, THEVARTHOTTAM MURI, ARACKAL VILALGE, PATHANAPURAM TALUK. 3. SUKUMARAN, S/O. KESAVAN, S/O.PADMANABHAN, ELAPPUMKOTTU EDAPPURA VEEDU, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. 4. GOPINATHAN, S/O. VIDHYADHARAN, ELAPPUMKOTTU KIZHAKKATHIL VEEDU, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.SIBY MATHEW SRI.A.A.MOHAMMED NAZIR RESPONDENT(S): RESPONDENTS/DEFENDANTS & ADDL.6TH RESPONDENT:. -------------------------------------- (*) 1. MADHAVAN. S/O. PADMANABHAN, VIJAYA MANDIRAM, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK.(DIED) 2. SOMARAJAN, S/O. MADHAVAN, VIJAYA MANDIRAM, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. 3. SANTHAMUMARI ALIAS OMANA, W/O. SOMARAJAN, VIJAYA MANDIRAM, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. RSA NO.665/2007 2 4. KAVIRAJAN, S/O. MADHAVAN, VIJAYA MANDIRAM, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. 5. VIJAYARAJAN, S/O. MADHAVAN, VIJAYA MANDIRAM, THEVARTHOTTAM MURI, ARACKAL VILLAGE, PATHANAPURAM TALUK. ADDL.R6 IMPLEADED: ADDL.R6. M.DEVARAJAN, LALJA NIVAS, THEVAR THOTTAM, THADIKAD P.O., ANCHAL. (ADDL.R6 IS IMPLEADED AS PER ORDER DATED 14.10.2009 ON IA NO. 1455 OF 2009) (*)RESPONDENT NOS.2, 4 AND 5 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.1 VIDE ORDER DATED 16.7.2009 ON IA NO.1456/2009. ADV. SRI.L.MOHANAN FOR R2 TO 5 SMT.LIGEY ANTONY FOR R2 TO 5 SRI.M.V.KIRAN MOHAN FOR R2 TO 5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.665 of 2007 -------------------------------------- Dated this the 14th day of October, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned District Judge, Kollam in A.S.No.259 of 2006 confirming dismissal of the suit, O.S.No.36 of 1993 by learned Munsiff, Punalur. Appellants/plaintiffs sued for decree for prohibitory injunction to restrain respondents from altering the lie and condition of item No.VI of the plaint schedule, described as a way having length of 250 metres and width of 8 feet and obstructing its user by the appellants. According to the appellants, themselves, respondents and public are using the said way for the last 50 years (as on the date of suit) to go to the public places referred to in paragraph No.4 of the plaint. Appellants and respondents are residing on either sides of the said way (item No.VI). Item Nos.I to V in the plaint schedule are properties belonging to the appellants and respondents. Respondents denied the existence of the way as described in item No.VI of the plaint schedule. According to them, there is a way starting from the estate road on the west, passing through the properties of some of the respondents and reaching the houses of respondent Nos.1 to 3 which has a length of 110 metres and width of 8 feet. That way is in existence for the last 20 years. That is the private way of the respondent Nos.1 to 3. There is a Panchayat road on the south of the property of the appellants. There is a pathway from the property of appellant No.1 through the property of one Shaji which reaches Panchayat road on the RSA No.665 of 2007 2 south. Appellants are using that way for access to their property. Further contention is that appellants trespassed into the property of respondent Nos.2 and 3 and committed mischief by widening the existing pathway. Respondents therefore, made a counter claim against appellants. Learned Munsiff found that the alleged user for fifty years as pleaded by the appellants is not proved and dismissed suit. Counter claim was dismissed since the property in respect of which that claim was made was not properly identified. Both sides appealed. Learned District Judge dismissed both appeals. This Second Appeal arises at the instance of appellants/plaintiffs from the judgment and decree in A.S.No.259 of 2006. The substantial questions of law raised in the memorandum of appeal are whether courts below are justified in finding that there is no pathway as described in plaint schedule item No.VI, whether the courts below are correct in holding that no specific right is claimed by the appellants for use of that pathway and whether failure of appellants to set up a plea as to the exact nature of right claimed will disentitle them to the relief prayed for. Learned counsel for appellants contend that appellants have no other means of access to their respective items scheduled in the plaint and that they are entitled to a right of easement. Counsel for respondents who took notice for them contended that appellants have come to the court with unclean hands after trespassing into the properties of respondents and making an attempt to widen the existing way. Learned counsel has taken me through Exts.C1 to C3, reports and sketch prepared by the advocate commissioner. RSA No.665 of 2007 3 2. I have gone through copy of the plaint that was made available to me by learned counsel for appellants. The right over the disputed pathway pleaded in paragraph No.4 of the plaint is that appellants and respondents are owning properties on either sides of item No.VI and people of the locality are using the said way to go to the market, temple, school, etc. and hence, they have a right to use item No.VI as a way. There is no averment in the plaint except the above as to the nature of right claimed by the appellants over the disputed way. 3. Respondents have a contention that appellants trespassed into their properties and committed mischief by widening the existing pathway. Exts.C1 to C3 justify that contention of respondents. Ext.C2, sketch shows the lie of item Nos.I to V and the disputed item No.VI. Item Nos.I to V are on either sides of the disputed way. The estate road is on the extreme west and that the disputed road originates from the estate road on the west, reaches the south- western corner of the property of respondent No.1 and then it goes towards north for access to plot Nos.1 and 2 in Ext.C2 which belonged to respondent Nos.2 and 3/defendant Nos.2 and 3. According to the respondents, that is a private way belonging to respondent Nos.1 to 3. Dispute is regarding the way from the said way, going towards east and terminating on the steps on the eastern side which as per the evidences leads to the paddy field on the further east. It is seen from the report of the advocate commissioner that at the disputed portion having length of 175 metres, item No.VI has no consistent width and it varies from 7 to 7.5 feet and comes down up to 4.5 feet. Towards the eastern extremity when it reaches the steps the width is only 4.5 feet while, RSA No.665 of 2007 4 towards the north-eastern portion of plot No.4 belonging to appellant No.2, its width is only 46 inches. Commissioner has shown that almost at middle of the disputed way at that portion there is a survey stone. Commissioner has reported that the disputed portion (175 metres) appeared to be recently formed in that he found loose earth put on that portion of the disputed way. Commissioner has also reported that adjoining the disputed way, in the respective properties belonging to some of the respondents, various trees carrying pepper vines were recently cut and the timber and stumps were seen in the respective items. Report of the commissioner shows that attempt was made to widen the way immediately before the filing of the suit. It is also pertinent to note that plaint is dated 06.03.1993 and the commissioner inspected the properties on 22.03.1993 and 25.03.1993. Thus, it is clear that the existing way was widened immediately before institution of the suit in the way the commissioner found at the time of inspection on 22.03.1993 and 25.03.1993. It is in respect of that way that appellants have claimed right of way. Learned counsel for appellants submits that appellants have only renovated the way. It is not made clear, be it a right of easement (even if it is so), be it a public right what right appellants have to renovate the way. Appellants have come to the court without equity but pleading equity. Courts below found that the alleged user of the way as stated in item No.VI for fifty years is not proved by the appellants (since it was formed immediately before the suit) I do not find any averment in the plaint to attract any right of easement under the Easements Act. Plaint lacks the necessary pleading. Nor is it said whether it is a public right that is claimed. It is in the RSA No.665 of 2007 5 above circumstances courts below found against the claim of the appellants and no suited them. On going through the judgment under challenge, copy of plaint and Exts.C1 to C3 and hearing learned counsel on both sides I do not find any substantial question of law involved in this appeal requiring its admission. Resultantly, this Second Appeal is dismissed in limine. I.A.No.2022 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks