IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 RSA.No. 1216 of 2009() ---------------------- A.S.NO.107/2005 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM O.S.NO.536/2003 OF III ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- SREEKALA, D/O. MADHAVAN NAIR, SREE HARI, NEAR SECRETARIAT COLONY, KANJIRAMPARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV ADV. LIGEY ANTONY RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- AYYAPPAN NAIR, S/O. KUMARA PILLAI, POYYOORKOINATHU VEEDU, AHAKAM KANDALA, KOOVALASSERY P.O., MARANALLOOR VIA, NEYYATTINKARA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1216 of 2009 -------------------------------------- Dated this the 13th day of January, 2010. JUDGMENT The Second Appeal arises from concurrent finding entered by the courts below and the decree for prohibitory injunction granted in favour of the respondent/plaintiff. Property scheduled in the plaint is five (5) cents in survey No.1258/A2-9 which the respondent claimed title and possession as per assignment deed No.5369 of 1978. Appellant is the neighbour who owns five (5) cents on southern side of the suit property. Respondent claimed that the suit property has well defined boundary on southern side and alleged that appellant is using a pathway starting from Udiyannoor road. Appellant is attempting to trespass into the suit property and hence the suit. Appellant claimed that respondent is not in possession of the entire suit property and that the plaint schedule description taking in a pathway over which she has a right of easement by way of grant and used by her and predecessors-in-interest. Trial court found that there is no evidence of existence of any such pathway as claimed by the appellant, not to say about the alleged grant. Accordingly the suit was decreed in favour of the respondent. Judgment and decree of the trial court were challenged by the appellant before learned Additional District Judge in appeal. In appeal appellant produced six (6) documents of which the certified copy of the documents of title were marked as Exts.B1 to B5. There was a request for remand of the case to the trial court which the first appellate court refused after RSA No.1216/2009 2 perusing Exts.B1 to B5 and holding that even those documents are not sufficient to uphold the claim of easement by way of grant. Consequently the appeal was dismissed. That judgment and decree are under challenge in this Second Appeal raising by way of substantial questions of law whether the first appellate court is justified in re-appreciating the evidence on the basis of the additional evidence without raising proper issues and without giving the appellant opportunity to adduce evidence and whether finding of the first appellate court that appellant is not entitled to the easement by way of grant is justified. Learned counsel contends that appellant was not given sufficient opportunity to adduce evidence. 2. It is not disputed that appellant had not produced in the trial court the documents she relied and produced in the first appellate court. Appellant filed O.S.No.506 of 2003 against the respondent seeking a decree of prohibitory injunction against trespassing into the property of appellant. There, an exparte decree was passed in favour of the respondent. The report of the advocate commissioner obtained in that suit also was produced in the first appellate court but that was not allowed to be marked in evidence. What is in evidence on the side of appellant is Exts.B1 to B5. 3. It is not very much in dispute that the suit property originally RSA No.1216/2009 3 belonged to the wife of respondent. Herself and mother of appellant are sisters and the properties belonging to them were partitioned as per Ext.B1, partition deed No.2372 of 1971. 23 cents in Sy.No.1258/A1 & 2 were partitioned among the sharers. 5.5.cents was allotted to party No.1, mother of the appellant. 12 cents was allotted to a brother of the wife of the respondent. Another 5.5. cents was allotted to party No.9, wife of the respondent. She assigned that 5.5. cents to the respondent as per Ext.A1. H schedule in Ext.B1 was allotted to the wife of the respondent which is the suit property. Ext.B2 is the CC of sale deed No.2434 of 1988, dated 21.7.1988 executed by one Sukumaran Nair in favour of Gopinathan Nair. Ext.B2 refers to a right of access along with western side of the plaint schedule property. Ext.B3 is the copy of assignment deed executed by the assignee under Ext.B2 in favour of the appellant. There also there is reference to a right of access through the western side of the suit property. But the first appellate court found that mention of right of way in Exts.B2 and B3 will not confer any right by grant since concededly, no such right of way was granted as per Ext.B1. In Ext.B1 the right of way provided is only to the A schedule therein and there is no mention of any right of way through the H schedule which is the present suit property. Ext.B1 having not provided any right of way through any portion of the plaint schedule property (H schedule in Ext.B1), the sharers who got right of other items under Ext.B1 cannot by RSA No.1216/2009 4 themselves create a grant by stating so in Exts.B2 and B3 as rightly found by the first appellate court. Exts.B2 and B3 cannot bind the respondent or affect the suit property. They are self serving documents created by the predecessors-in- interest of the appellant. No other right is pleaded by the appellant as against the respondent. It is in the above circumstances that the first appellate court found against the prayer of appellant and dismissed the appeal. In the light of what I have stated no substantial question of law is involved in this Second Appeal requiring interference. The Second Appeal is dismissed in limine. I.A. No.2772 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks