IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 RSA.No. 1094 of 2008 ----------------------------------- AS.52/1997 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.442/1990 of MUSNIFF COURT, ADOOR .................... APPELLANT/APPELLANT/PLAINTIFF: K.N. SUBADRAMMA, KOCHUKALLEKKAL VADAKKETHIL VEEDU, PRESENTLY RESIDING AT PALAPARAMBIL VEEDU, KADAMPANAD VADAKKUM MURI, KADAMPANAD VILLAGE, ADOOR TALUK. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT/RESPONDENT/DEFENDANT: ------------------------------------- R.SUKUMARI AMMA, CHARINJAKALA PUTHEN VEEDU, KADAMPANAD VADAKKUM MURI, KADAMPANAD VILLAGE, ADOOR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.1094 of 2008 -------------------------- JUDGMENT This Regular Second Appeal has been filed by the plaintiff in O.S.No.442/90 on the file of the Munsiff's Court, Adoor against the concurrent verdicts passed against her by the courts below, negativing her claim for plaint B schedule pathway. 2. No argument at all is advanced before me by the learned counsel for the appellant/plaintiff assailing the rejection of the claim for plaint B schedule pathway, accepting the contentions of the respondent/defendant. The contention of the learned counsel for the appellant/plaintiff is that in the written statement the respondent/defendant stated that she has got 55 cents of property obtained under Exhibit B4; that along the eastern portions of that 55 cents, the appellant/plaintiff and her predecessors occasionally used to have access to plaint A schedule property belonging to them, RSA 1094/08 2 though they were having other accesses also to their property; that, however, when she attempted to dispose of the said 55 cents, the vendee refused to purchase 2½ cents, being the northern portions of the said 55 cents for reason that the appellant/ plaintiff and her predecessors are using the said portions as pathway; that therefore, the said portion, having an extent of 2½ cents, is still under her ownership and possession paying tax; that in examination of her husband as DW1, he admitted and deposed in cross-examination that they have no objection in the appellant/plaintiff using the said 2½ cents as pathway and that an opportunity be granted to the appellant/plaintiff to get that pathway having an extent of 2½ cents identified. All the same, it is admitted that the said pathway is not through plaint B schedule property as claimed in the plaint. 3. According to the learned counsel for the appellant/plaintiff, to locate the said 2½ cents of RSA 1094/08 3 pathway, excluded from Exhibit B4 sale deed by the respondent/defendant and which she admitted can be used by the appellant/plaintiff, a commission application was moved before the first appellate court as I.A.No.616/05 and that was dismissed by the court assigning the reason that existence of another pathway is beyond the scope of pleadings and therefore, cannot be allowed. According to the learned counsel, either that application be allowed by this Court to have the said 2½ cents that is attempted to be used as pathway by the appellant/ plaintiff, being got identified or the Regular Second Appeal be admitted and notice be ordered to the respondent, so that on appearance of the respondent, the matter can be referred to the Adalath for a settlement of the matter. 4. There is absolutely no question of law and much less any substantial question of law that arises for consideration in this Regular Second Appeal and the counsel has not addressed arguments RSA 1094/08 4 also, canvassing any such question of law. The request is only to have 2½ cents left behind after the sale of 52½ cents of property under Exhibit B4 by the respondent/defendant being ascertained, as even according to the respondent/defendant, that portion is used occasionally by the appellant/ plaintiff as pathway and she has no objection in the appellant/plaintiff using the said pathway. When the admission of the appellant/plaintiff is that another pathway is there through the property of the respondent/defendant herself, that is a matter which can be worked out independent of proceeding with this suit, wherein the appellant/ plaintiff has claimed for a pathway as of right by way by prescription over plaint B schedule property. Inasmuch as it is concurrently found that plaint B schedule pathway is not in existence for the plaintiff's use by prescription, as a pathway, as of right, as alleged by the appellant/ plaintiff and she has no case that right of way RSA 1094/08 5 over plaint B schedule property has to be fastened and upheld, I do not see any reason why this Regular Second Appeal is to be admitted on file. In the result, I dismiss this Regular Second Appeal without prejudice to the right of the appellant/plaintiff to seek for appropriate relief in relation to 2½ cents, belonging to the respondent/defendant, that remains after the sale of 52½ cents under Exhibit B4, for using it as a pathway by her, as agreed to by the respondent/ defendant. 16th February, 2009 (K.P.Balachandran, Judge) tkv