IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 SA.No. 921 of 1996 ------------------------------- (AS.28/1995 of ADDL.SUB COURT, THALASSERY) (OS.373/1993 of PRINCIPAL MUNSIFF COURT, KANNUR) .................... APPELLANT(S): APPELLANTS: PLAINTIFFS: ------------------------------------------------------------- 1. V.M.POKKU, S/O. MOIDEEN. 2. K.K. SAKEENA, D/O.MAMMU. 3. P.M.SUBAIDA, D/O.KUNHAMMED. 4. T.M.SIRAJ, S/O.KUNHAMMED. 5. T.K.ZEENATH, D/O.SULAIMAN HAJI. (ALL THE APPELLANTS ARE PARTNERS OF M/S.SURABHI TRADING COMPANY, HAJI ROAD, KANNUR) BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): RESPONDENT: DEFENDANT: ------------------------------------------------------------------- T.T.ASHOKAN, S/O.T.P.APPU, ASHOKA HOTEL, HAJEE ROAD, KANNUR. BY ADV. SRI.M.RAMESH CHANDER SRI.V.RAMKUMAR NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A. NO. 921 OF 1996 -------------------------------------- Dated this the 23rd July, 2009 JUDGMENT Appellants are the plaintiffs. The Suit was filed for injunction restraining the respondent and his men from obstructing the appellants from using plaint B schedule pathway to have access to their godown buildings from plaint A schedule property by fixing a gate in it or in any way obstructing the same. The case of the appellants, in brief, is as follows: Appellants are partners of a Firm conducting business in plaint A schedule property. They are wholesale dealers in grocery items. The building belongs to one Rukhiyabi and the appellants/plaintiffs are the tenants and a lease deed was executed in the year 1991. The respondent/defendant is stated to be in possession of the building on the southern side of plaint A schedule property. He is conducting a hotel. Appellants are in possession of two rooms on the eastern side of plaint A schedule property, just some eight feet away, which are used as SA.NO.921 OF 1996 2 godown. They are using plaint B schedule pathway to to go the godown. It starts from the back door of plaint A schedule building and leads to the godown building. It is stated that the appellants and their predecessors are using this pathway for their ingress and egress to the godown from plaint A schedule building for the last fifty years. It is also stated that the only pathway available to the plaintiffs to have access to the godown from plaint A schedule property is the plaint B schedule pathway and the defendant has no manner of right over plaint B schedule pathway. At the time of the lease, it is alleged that the landlady has shown the basic document of plaint A schedule property under which she obtained rights over plaint A & B schedule properties. It is stated that plaint B schedule can be used by the lessor. But, without using plaint B schedule, the plaintiffs cannot enter the godown building. It is stated that on 16.7.1993, the defendant trespassed into plaint B schedule and tried to fix an iron gate. 2. It is, inter alia, on the above allegations that the Suit SA.NO.921 OF 1996 3 was filed. The defendant contended, inter alia, that his father was conducting hotel business from 1943 in building Nos.1174, 1175, 1176 and CE 451 within the Kannur Municipality as tenant. Even from the very inception of the hotel business, the pathway shown as plaint B schedule was used as the servants quarters, kitchen and work-area of the hotel, and not used as pathway. Due to some labour dispute, it is contended that the hotel business was closed from April, 1991 to June, 1993. Plaint A schedule was never in the possession of the appellants before June, 1991. There was no back door in the plaint A schedule property before 22.12.1991. Neither the plaintiffs, nor their predecessors in interest used plaint B schedule pathway. There is no plaint B schedule pathway as alleged in the Suit. The back door of the plaint A schedule property was fixed recently when the hotel business was closed due to labour strike. Plaintiffs have no right over plaint B schedule pathway and it is forming part and parcel of the hotel business. 3. The trial court framed three issues apart from the issue SA.NO.921 OF 1996 4 relating to compensatory cost. A Commission was taken out. Ext.C1 is the Commission Report dated 6.8.1993. Ext.C2 is the sketch plan. Ext.C3 is the Report dated 2.8.1994 and Ext.C4 is the plan. Ext.A1 is the Partition Deed executed between the predecessor in interest of the appellants. Ext.A2 is stated to be the Koolichit executed by the appellants in favour of Smt. Rukhiyabi. So also, is Ext.A3. On the side of the respondent, Exts.B1 to B3 were produced. The fourth appellant was examined as PW1. The husband of the lessor, Shri Aboobacker was examined as PW2. PW3 is none other than the Advocate Commissioner. The respondent/defendant was examined as DW1. 4. It is found that in Ext.C4 plan the entire area in the possession of the defendant is shown in blue colour. The disputed B schedule pathway is shown as “ABJI”. Relying on the Commission Report, the trial court found that there is no B schedule pathway as claimed by the appellants. It is also to be noted that the court has also found that the rolling shutter found SA.NO.921 OF 1996 5 in the A schedule might have been fixed during the time when the hotel business was closed between 1991 and 1993. The court also found that plaint A schedule property was allotted to PW2 and the other two portions, namely the godowns are allotted to some other person and the court posed the question as to what necessitated anyone to go from A schedule property to the godown. No doubt, PW2, the husband of the lessor of the appellants was examined and he spoke in support of the appellants. He spoke about the B schedule pathway as was being used for the past fifty years. But, the court found that his oral testimony is pitted against the deposition of DW1 that there is no such pathway. The court also found that the appellants have got a way as indicated in the Commission Report and the claim for easementary right by necessity will not stand. The first appellate court has confirmed the findings. 5. Learned counsel for the appellants would contend that this is a case where PW2 lessor of the appellants has gone into the box and spoken about there being a pathway. He contended SA.NO.921 OF 1996 6 that the appellants traced their right to the right obtained by the lessor under Ext.A1 partition deed. He took me through the averments in the plaint. He invited my attention to paragraph 4 of the plaint. It reads as follows: “4. At the time of entrusting the building to the plaintiffs, the landlady had shown her basic document in respect of the A schedule property to the plaintiffs in which it is stated that the occupier of the plaint A schedule building can use the plaint B schedule pathway as an access to the godown buildings. Moreover, in the lease deed also, it is specifically stated that the plaintiffs have the right to use the plaint B schedule pathway as an access to the godown buildings from the back door of plaint A schedule building. Without using the plaint B schedule pathway, the plaintiffs cannot enter into the godown buildings which are inevitable to their wholesale business conducted in the plaint A schedule building.” He made an attempt to contend, during the course of his argument that under the partition deed, it was agreed between the co-owners that they would leave open the space untouched SA.NO.921 OF 1996 7 and would not put up any construction thereon. There is no such case in the plaint as such. All that the plaintiffs averred was that there was a pathway as B schedule. 6. I went through Ext.C4 Report of the Commissioner. The Commissioner has concluded as follows: “11. In conclusion, I have to report (i) that the pathway in between the red lines and as shown in brown colour in the plan is the pathway identified and available as per the partition deed No.1823/1962 for ingress and egress to the properties allotted to the executants 1 and 4 to 7 of the said deed at the back from the Haji Road. (ii) that the portion of the plaint B schedule pathway (ABIJ in the plan) measuring 21/2' in width and 18' in length is in the possession of the defendant and this portion does not form part of the pathway that I have identified as per the partition deed No.1823/1962, and (iii) that the plaint B schedule pathway is used by the plaintiffs to reach from the plaint A schedule building to their godowns at its east.” SA.NO.921 OF 1996 8 The Commissioner has identified plaint B schedule as the pathway in between the red lines and as shown in brown colour on the basis of the partition deed. He has also reported that it is this plaint B schedule pathway which has been used by the appellants to reach from the plaint A schedule building to their godown at the east. A perusal of the Report and the Plan accompanied by it suffices to reject the claim of the appellants that there existed a pathway as B schedule as claimed by them in the plaint. Without there being a pathway as claimed by them physically, the question of finding right for such pathway of any sort, be it easement by prescription or grant or necessity, does not arise. In other words, this is a case where, going by the material on record, it is to be found that the appellants have failed to establish that there is a pathway as claimed by them in the plaint with reference to the partition deed. The finding which was rendered by the trial court which was based on the Report of the Commissioner and, no doubt, also after referring SA.NO.921 OF 1996 9 to the evidence of PW1, PW2 and DW1 also is certainly a possible view. A Second Appeal can be entertained only if there is substantial question of law. What is pressed before me by the learned counsel for the appellants, is an argument which requires that the oral testimony of PW2 will overwhelm the entire evidence otherwise on record. I see no reason why I should accede to this request. The matters have been reported by the Advocate Commissioner. No case is sought to be set up before me that the Report of the Commissioner is such that it is to be rejected. If that be so, the findings are indeed based on materials and cannot be rejected as without evidence or perverse. In this view of the matter, I see no merit in the Second Appeal and it is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.NO.921 OF 1996 10 K.M.JOSEPH, J. S.A.NO.921 OF 1996 JUDGDMENT 23rd July, 2009.