IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 RSA.NO. 404 OF 2008() --------------------- AS.39/2007 OF III ADDL. DISTRICT COURT, KOLLAM OS.500/2003 OF MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- MAHILAMANI, R.K.BHAVAN, KOCHU PUTHEN VEEDU, PORUKKARA MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S) – RESPONDENTS - DEFENDANTS: ------------------------- 1. C.K.SUNDARAN, S.R.NIVAS, PORUKKARA MURI, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY, KOLLAM. 2. RADHAMANI, RESIDING AT DO. DO. 3. JAYAND, RESIDING AT DO. DO. 4. S.R.REENA, RESIDING AT DO. DO. ADV. SRI.K.KARTHIKEYA PANICKER FOR R1 TO R4 DAYA K. PANICKER SRI.K.KARTHIKEYA PANICKER FOR R1 TO 4 SMT.DAYA K. PANICKER FOR R1 TO 4 SRI.RAJU VADAKKEKKARA(ADV.COMMNR.) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.404 of 2008 ================================= Dated this the 30th day of March, 2010 J U D G M E N T Dispute concerned right of access which the appellant claimed almost through the middle of plaint B schedule property belonging to the respondents and situated on the east of plaint A schedule belonging to the appellant. Disputed pathway is referred to in the plaint as C schedule and claimed to be having width of 5 metres and length of 20 metres. Appellant raised a claim of easement by way of prescription over the C schedule. As respondents have raised dispute she prayed for declaration of easement and prohibitory injunction. Respondents resisted the suit contending that there is no such pathway through plaint B schedule as claimed by the appellant and that respondents have a private way through the plaint B schedule property. They denied that appellant has any right of access through the said way, at any rate by way of easement by prescription. It is their further case that there is a pathway on the northern side of plaint B schedule running east-west and having width of 4 feet which appellant could make use of for access to the plaint A schedule. In the course of evidence it R.S.A. No.404 of 2008 -: 2 :- came out that respondent No.2 is also a co-owner of plaint A schedule. Trial court found that appellant is not entitled to any right of easement by way of prescription over the disputed C schedule. Consequence was dismissal of the suit. In appeal at the instance of the appellant first appellate court while concurring with the views expressed by the trial court stated that it is quite unlikely that owners of plaint B schedule would acquiesce in the act of appellant making use of C schedule through the middle of plaint B Schedule for access to plaint A schedule. Accordingly confirming judgment and decree of learned Munsiff, the appeal was dismissed. Appellant is aggrieved and has come up in appeal urging by way of substantial question of law whether courts below were legally and factually correct in disallowing reliefs sought for in respect of C schedule. First appellate court while dismissing the appeal also taking note of the contentions taken by the respondents has stated that appellant could use the 1.90 metres wide and 14 metres long portion of land along the northern portion of B schedule and southern side of retaining wall of the northern thodu as stated in Exts.C2 and C3 as R.S.A. No.404 of 2008 -: 3 :- pathway for access from the Panchayat road on the east of B schedule without being obstructed by the respondents. Obviously in the light of the said direction and after hearing both sides this Court as per order dated 28.07.2008 deputed an Advocate Commissioner to set out the said pathway. Advocate Commissioner has submitted a report and sketch as per which and according to him he has set out a pathway. Serious objections are raised by the respondents against the report and sketch submitted by the Advocate Commissioner. According to the learned counsel for respondents it is not along the portion of the property referred to in the operative portion of the judgment of the first appellate court that Advocate Commissioner has set out the pathway. It is contended that trees standing along the said pathway have been cut and removed. Learned counsel for the appellant would contend that there is nothing objectionable in the report and sketch of the Advocate Commissioner since the pathway has been set out strictly in accordance with the direction of this Court and as stated in the operative portion of the judgment of the first appellate court. R.S.A. No.404 of 2008 -: 4 :- 2. So far as the alternative way is concerned, respondents have no objection in the appellant making use of the said way for access to plaint A schedule property provided it is strictly in accordance with the reports, Exts.C2 and C3 and as stated in the operative portion of judgment of the first appellate court. Learned counsel for appellant also is agreeable for making use of that alternative pathway though he has a case that it has already been set out by this Court through the Advocate Commissioner and hence further setting out of the way is not required. 3. So far as the grounds urged in the memorandum of Second Appeal are concerned it is seen from the judgments of the courts below that it is based on the oral and documentary evidence let in by the parties that claim of easement by way of prescription was found against. Going by the contentions of the appellant it would appear that plaint C schedule goes along almost middle of plaint B schedule cutting it into two parts on the north and south. First appellate court has opined that it is quite unlikely that in such a manner detrimental to the interest of respondents over plaint B schedule that respondents have R.S.A. No.404 of 2008 -: 5 :- accepted the alleged right of the appellant. Having gone through the judgments under challenge and hearing counsel on both sides I am satisfied that finding of the courts below as to the entitlement of the appellant over the disputed C schedule is based on the appreciation of the evidence, oral and documentary and it involve no substantial question of law requiring admission of this Second Appeal. 4. But appellant cannot be left high and dry. Appellant should have an access to plaint A schedule from the public road on the eastern side of plaint B schedule. This in all fairness is not disputed by the respondents also in that they have no objection in the appellant making use of the alternative way. So far as the report and sketch obtained by this Court as per order dated 28.07.2008 is concerned since there is serious objection regarding the lie of that pathway set out, I do not think it proper to accept that report and sketch to pave way for future dispute between the parties who are closely related. While providing the alternative way it is also the look of this Court that there shall not be any future dispute regarding the same. Hence I accept Exts.C2 and C3 report as to the lie of the R.S.A. No.404 of 2008 -: 6 :- alternative pathway. I make it clear that the alternative pathway over which the appellant is given a right of access originates from the public road on east of plaint B schedule, goes along the northern side of B schedule and reaches A schedule. That pathway will have a width of 1.90 metres to be measured towards south from the southern side of the retaining wall of thodu on the northern side of plaint B schedule and its approximate length will be 14 metres. Learned counsel for appellant would submit that as of now there are no trees or other obstructions in the said pathway I have referred to above. I make it clear that if found necessary it will be open to both sides to execute this decree so that the said pathway is set out at their expense. 5. Appellant has an apprehension that respondents might cause obstruction to her user of the said way. Counsel for respondents submitted that it is the suggestion of the respondents that appellant could use the alternative pathway referred to above and hence the question of respondents obstructing her user does not arise. However, for the purpose of preserving peace between the parties and to avoid future R.S.A. No.404 of 2008 -: 7 :- dispute I consider it necessary to direct the respondents not to cause any sort of obstructions to the appellant or persons claiming under her from using the alternative pathway. Resultantly Second Appeal is dismissed in limine. But appellant or persons claiming under her in respect of plaint A schedule are permitted to make use of the alternative pathway which is described (as referred to in Exts.C2 and C3) in the operative portion of the judgment of the first appellate court and starting from the public road on the east of plaint B schedule, going towards west along the northern portion of plaint B schedule and reaching plaint A schedule. That pathway will have a width of 1.90 metres to be measured towards south from the southern side of the southern retaining wall of the thodu on the north of plaint B schedule. It will be open to the parties hereto or any of them to set out the said pathway if found necessary by executing the decree of this Court at their expense. It will also be open to the parties concerned to seek assistance of the executing court to remove the obstructions if any in the said pathway so that free access to plaint A schedule is made possible. Respondents are restrained from causing any R.S.A. No.404 of 2008 -: 8 :- sort of obstructions to the said pathway or its user by the appellant or persons claiming under her in respect of plaint A schedule. Interlocutory Application Nos.1245 and 1898 of 2008 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv