IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 RSA.No. 526 of 2011() -------------------------------- AS.NO. 157/2010 of ADDL. DISTRICT COURT-1, THIRUVANANTHAPURAM OS.NO. 1061/1999 of ADDITIONAL MUNSIFF COURT-1,NEYYATTINKARA . ................... APPELLANT/RESPONDENT NO.2 IN A.S.-ADDL.PLAINTIFF NO.2 IN SUIT ------------------------------------------------------------------------------------------------------ UDAYAN, S/O.KUNJUKRISHNAN NADAR, MELE JIJO BHAVAN, PONKIL ALSO HAVING RESIDENCE AT PANAVILAKATHU PUTHEN VEEDU, KOTTAKKAL DESOM, ANAVOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON RESPONDENT/ APPELLANT/DEFENDANT NO.2, PLAINTIFF NO.1 & DEFENDANT NO.1 IN SUIT --------------------------------------------------------------------------------- 1. BABY, D/O.KAMALAMMA PILLAI, PONKILKADAYARA VEEDU, THATHIYOOR DESOM, PERUMKADAVILA VILLAGE. 2. KUNJUKRISHNAN NADAR, S/O.KESAVAN NADAR, PANAVUILAKATHU MELEPUTHEN VEEDU, KOTTAKKAL DESOM, ANAVOOR VILLAGE. 3. SATHYANESAN, S/O.ASSARI NADAR, MEPPAMCODE, PANAKKOTTUKARA MELE PUTHEN VEEDU, THATHIYOOR DESOM, PERUMKADAVILA VILLAGE. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.526 OF 2011 ............................................ DATED THIS THE 30th DAY OF MAY, 2011 JUDGMENT Plaintiff in O.S.1061 of 1999 on the file of Additional Munsiff Court, Neyyattinkara is the appellant. First respondent is the second defendant and other respondents, other defendants in the suit. Appellant instituted the suit seeking a decree for injunction restraining the respondents from trespassing into the plaint schedule property. First respondent raised a counter claim contending that he has a right of way through the southern side of the plaint schedule property, which is described as C schedule property in the counter claim, and that way has been usedopenly and peacably as of right as an easement, continuously for more than 50 years and suppressing the way appellant instituted the suit and obtained an order of injunction after obstructing the way by constructing a wall on the southern side of the plaint schedule property. First respondent sought a decree for mandatory injunction in the counter claim. Appellant filed a written statement to the counter claim denying the right of way. RSA 526/2011 2 2. Learned Munsiff, on the evidence of Pws 1 and 2, Dws 1 and 2, Exts.A1 to A5, B1 to B3, C1 and C2(a) dismissed the counter claim and granted a permanent prohibitory injunction in favour of appellant restraining respondents from trespassing into the plaint schedule property. First respondent challenged the decree in the suit and the counter claim in A.S.157 of 2010 and A.S.158 of 2010. Learned Additional District Judge, on reappreciation of evidence, reversed the findings of trial court, dismissed the suit and granted the decree in the counter claim declaring a right of way by easement of prescription on counter claim C schedule property and granted a mandatory injunction to remove the obstruction caused. Appeal is filed challenging the judgment of the Additional District Judge. 3. Learned counsel appearing for appellant was heard. The learned counsel pointed out that trial court on appreciation of evidence found that though the Commissioner in Ext.C1 report and C1(a) plan noted an old way to the east of the plaint schedule property proceeding towards the east and reaching the property of appellant, Commissioner could not note continuation of way through the plaint schedule property. It was pointed out RSA 526/2011 3 that there is no evidence to prove that there existed a way through the southern portion of the plaint schedule property, which has been allegedly used by first respondent as of right and as an easement continuously for more than the requisite period and in the light of the evidence and findings, first appellate court was not justified in reversing the decree. Learned counsel submitted that the first appellate court carried away by the facts noted by the Commissioner in Ext.C1 report and C1(a) plan, but ignored the existence of a way on the southern portion of the plaint schedule property and Commissioner could not find any trace of the alleged way in the plaint schedule property. Learned counsel pointed out that the plaint schedule property is lying on a lower level than the property which lies to the east and the Commissioner could find no steps to enter the plaint schedule property and therefore there cannot be a possibility of continuation of the way through the plaint schedule property, in the absence of steps due to the level difference and therefore the finding that, first respondent has established a right of way by easement of prescription through C schedule property in the counter claim is unsustainable. Learned counsel also pointed out RSA 526/2011 4 that as per Ext.C1 report and C1(a) plan, the width of the property which lies at FG point noted by the Commissioner is only 0.7 metres and in Ext.C2 report and C2(a) plan, Commissioner has noted a septic tank constructed at the place where the alleged way is passing and there cannot be a way through that place when there is a septic tank and in such circumstances, finding of the first appellate court is unsustainable. Learned counsel also pointed out that though DW1 claimed a right of way by easement of prescription, in cross examination, he claimed that it is a public way and there is no evidence that it is a public way and in such circumstances, at any rate, finding of the first appellate court is unsustainable and the trial court, on proper appreciation of the evidence found that a right of easement by prescription is not established and that finding is to be restored. 4. Learned counsel made available the pleadings and copies of the depositions. Though trial court disbelieved the case of first respondent that there exist a way through the counter claim C schedule property, it was reversed by the first appellate court.Though it was argued that there is a level difference between the plaint schedule property and the eastern property RSA 526/2011 5 and as there is no steps and as the Commissioner did not note continuation of the way, which lies towards east through the plaint schedule property, there cannot be a way, it is clear that as rightly found by the first appellate court, learned Munsiff did not properly appreciate the evidence. The suit was instituted immediately after construction of the compound wall on the southern side of the plaint schedule property as is clear from Ext.C1 report. In fact the Commissioner has inspected the property at the instance of first respondent on the very day of institution of the suit. The Commissioner found that the southern compound wall was constructed very recently and the wall which obstructs the way claimed by appellant was constructed on the day of inspection of the Commissioner. When the data collected by the Commissioner strengthens the case of the first respondent that appellant constructed a compound wall on the southern side, after eracing the traces of the existing way, which is a continuation of the old way noted by the Commissioner towards the east of the plaint schedule property from FG to KM, based on the omission to note the existence of the way in the plaint schedule property, it cannot be said that no way existed through RSA 526/2011 6 the plaint schedule property. Admittedly, to the west of the plaint schedule property is the public road, Manchavilakom- Kottakkal road. The way noted by the Commissioner, which starts from east MK, as shown in Ext.C2(a), proceeds upto the eastern boundary of the plaint schedule property. In all probability, that way continues through the plaint schedule property as found by the first appellate court. If the way noted towards the east viz, FGKM is not continuation of the way through the plaint schedule property, plaintiff would have explained the reason for its existence only towards its east. There is no explanation for the appellant for the existence of the way. Though learned Munsiff found that first respondent, at the time of evidence, did not depose the ingredients of a right of easement by prescription, first appellate court found that all the necessary ingredients are spoken to by DW1. The copy of the deposition made available by learned counsel makes it clear that finding of the trial court is not correct and first appellate court rightly appreciated the evidence. There is clearly misappreciation of evidence by the trial court, which was corrected by the first appellate court. 5. On going through the evidence, finding of the first RSA 526/2011 7 appellate court that first respondent has established a right of easement by prescription over the counter claim C schedule property, which runs through the southern portion of the plaint schedule property is perfectly correct. That finding of fact cannot be interfered in the second appeal. In such circumstances, I find no substantial question of law involved in the appeal to the aid of appellant, who approached the court by suppressing true facts and removing the traces of way through plaint schedule property alleging that respondents are attempting to trespass into the plaint schedule property. Appeal is therefore dismissed. It is made clear that the way available to the first respondent and the mandatory injunction granted is only in respect of the way, as , marked by the Commissioner in Ext.C1(a) plan. It is also made clear that the septic tank, so long as it does not cause any obstruction to the right of way, shall not be demolished. So also, if the sun shade is not causing any obstruction, it is not to be removed. M.SASIDHARAN NAMBIAR, JUDGE lgk