IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 RSA.No. 154 of 2010() --------------------- AS.272/2006 of ADDL.DISTRICT COURT (ADHOC)-I, KOTTAYAM OS.108/2002 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/RESPONDENT/DEFENDANT -------------------------------------------------- SHUKKOOR, AGED 38, S/O.LATE ABDUL REHMAN, KOCHENNANPARAMBU, PERUNNA P.O., CHANGANACHERRY. BY ADV. SRI.RAJEEV V.KURUP RESPONDENT/APPELLANT/PLAINTIFF ---------------------------------- P.P.MOHAMMED ISMAIL, AGED 68, S/O.LATE P.A.PAREETH RAWTHER, KIZHAKKEKKARA HOUSE, VAIKOM MURY, RANNY VILLAGE, DO TALUK, PATHANAMTHITTA DISTRICT ADV. SRI.K.GOPALAKRISHNA KURUP THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.154 of 2010 -------------------------------------- Dated this the 24th day of March, 2010. JUDGMENT Second Appeal arises from judgment and decree of learned Additional District Judge (Adhoc)-I, Kottayam in A.S.No.272 of 2006 which reversed judgment and decree of learned Additional Sub Judge, Kottayam in O.S.No.108 of 2002. Dispute is concerning the northern portion of item Nos.2 and 3. According to the respondent/plaintiff, he got item No.1 as per Ext.A1, assignment deed No.3559 of 1981 and constructed a commercial building in the said property in the year 1998. The building is let out to tenants. Item No.2 is a strip of land adjacent to item No.1 and beyond its northern boundary which respondent also admits is Government puramboke and claimed to be in his possession and enjoyment for long. Respondent produced Ext.A2 series to prove payment of prohibitory tax on item No.2 from 1986 to 2005. Item Nos.1 and 2 lies contiguous with well defined boundaries on all sides. Item No.3 is an open space between the northern wall of building in item No.1 and northern compound wall of item Nos.1 and 2. That according to respondent is an open space used for car parking of the commercial building in item No.1. On the west of the suit property is the property belonging to the appellant. According to the respondent the suit property and property on the west are separated by a compound wall. Appellant has access to his property from his west. Appellant constructed gate on the north-west of the schedule property after demolishing a RSA No.154/2010 2 portion of the compound wall. Hence respondent sued for prohibitory injunction. According to the appellant Government land is situated on the north and west of property of respondent and he has perfected right of easement by way of prescription over item No.2. He denied that he has access from western side. He also contended that attempt of the respondent is to grab Government land and that suit without impleading the Government is not maintainable. Trial court answered all the issues except as to non-impleadment of necessary party in favour of the respondent and held that suit is not maintainable since Government is not made a party. Accordingly the suit was dismissed. In appeal at the instance of respondent, first appellate court answered all the issues in favour of respondent, held that the junction of Government is not necessary in the nature of the claim made by the respondent against appellant and reversing the judgment and decree of the trial court granted a decree in favour of the respondent. That is under challenge in this Second Appeal urging by way of substantial question of law whether finding of the courts below regarding the right of easement by prescription claimed by appellant is legally and factually correct. Learned counsel for appellant relying on Ext.B1, resurvey sketch would contend that there is a pathway along the northern portion of plaint schedule item No.1 through which appellant was gaining access to his property on the further west. Counsel for respondent would contend that apart from producing Ext.B1 no attempt was made by the appellant to prove that there was RSA No.154/2010 3 any such pathway and that he ever used the said portion for access to his property. It is also argued that findings of the courts below are based on the evidence on record and it involved no substantial question of law. 2. I have gone through a copy of Ext.B1, resurvey sketch (given by learned counsel) but from Ext.B1 no inference is possible that there is any way along the northern side of item No.1 leading to the property of appellant on the western side or that he ever used that portion for access to his property. That, Government puramboke land is earmarked in Ext.B1 is not by itself sufficient to say that appellant has right of access to his property from the said Government puramboke. That the Government puramboke (item No.2) is in the possession and enjoyment of respondent to the knowledge of the Government is revealed from Ext.A2 series, receipts for payment of revenue for item No.2 from 1986 to 2005. In between appellant and respondent possessory right of respondent over item No.2 has to prevail subject ofcourse to the right of easement by prescription if any appellant has over the said land. 3. So far as claim of easement by prescription is concerned, Exts.C1 and C1(a), report and plan submitted by the Advocate Commissioner do not show the existence of any pathway through item No.2 leading to the property of appellant on west. On the other hand the Advocate Commissioner has reported in Ext.C1 and stated in her evidence as CW1 that there was not even RSA No.154/2010 4 beaten track through item No.2 of plaint schedule to the property of appellant on the west. Instead, Advocate Commissioner saw and reported about thick growth of grass and bushes at the portion of the alleged pathway and premises. The Commissioner has also noted that there is a compound wall on the western side of the plaint schedule item Nos.1 and 2 separating it from the property of the appellant on the further west but, on that compound wall, a gate was seen fixed on old pillars. Commissioner reported oldness of that gate as just five days. It is the case of the respondent that appellant, infringing his right demolished a portion of the compound wall on the western side and put up a gate. That contention of the respondent is justified by Exts.C1 and C1(a). Appellant gave evidence as DW1 and testified to his case. DWs 2 and 3 are the witnesses examined to prove his case. Trial court observed that evidence of DW2 does not appears to be believable since he has no consistent case regarding width of the pathway. He does not know the width of the puramboke land used as the disputed pathway. He would say that there is a pathway through which two persons could just walk. Then he stated that three-four persons can walk through the said way and it is motorable. Then he stated that the pathway admits heavy vehicles like lorry. DW3 is a former councillor of the local body. Courts below considered the evidence and found that evidence of DWs 1 to 3 is RSA No.154/2010 5 not acceptable or sufficient to find in favour of alleged right of easement by way of prescription. That finding is based on evidence on record and involved no substantial question of law. Resultantly Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks