IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 SA.No. 504 of 1996(B) --------------------- AS.129/1988 of PRINCIPAL SUB COURT,ATTINGAL OS.116/1984 of MUNSIFF COURT,ATTINGAL .................... APPELLANTS/APPELLANTS 1 TO 3 & 5/PLAINTIFFS 1 TO 3 & 5: --------------------------------------------------------------------- 1. PADMANABHAN SARASWATHY, CHIRAMOOLA, KIZHAKKUVILA VEEDU, MELKADAKKAVOOR DESOM, CHIRAYINKIZH VILLAGE. 2. SHAHUL HAMEED RAHUMA BEEVI, MUNDACHANVILAKATHU VEEDU, VAKKOM DESOM, KADAKKAVOOR VILLAGE. 3. SHAHUL HAMEED SHAMSUDDIN, RAZIA MANZIL, (DIED) NILAKKAMUKKU, KEEZHATTINGAL DESOM AND VILLAGE. 4. AHAMMED PILLAI ABDUL AZEEZ, SUJITHA MANZIL, KEEZHATTINGAL DESOM, -DO- VILLAGE. *5. RAZIYA BEEVI, W/O.LATE SHAHUL HAMEED SHAMSUDEEN, AGED 61 YEARS, RESIDING AT RAZIYA MANZIL, NILAKKAMUKKU P.O., KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. * ADDL.APPELLANT A5 IS IMPLEADED AS THE L.R OF THE DECEASED 3RD APPELLANT AS PER ORDER DATED 20.8.2009 IN I.A.NO.1887/2009. BY ADV. MR.M.P.RAMNATH MR.V.G.ANURAJ RESPONDENTS/RESPONDENTS & 4TH APPELLANT/DEFENDANTS & 4TH PLAINTIFF: ------------------------------------------------------------------------------- 1. SAIDU MUHAMMED KANNU SUHARA BEEVI, VILAYIL VEEDU, NILAKKAMUKKU, KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE. 2. ABDULLA ABDUL RUBB, -DO- -DO- (DIED) 3. SHAHUL HAMEED ASUMA BEEVI, (DIED) (ASUMA BEEVI.S) NOW RESIDING AT BLK.2 - JALANKUKOH, 05-153, SINGAPORE - 163 002 (CNTD....2) SA.No. 504 of 1996(B) ::2:: *4. MOHAMMED RAFI, S/O.ABDUL RUBB, AGED 39 YEARS, RESIDING AT VILAYIL VEEDU, NILAKKAMUKKU, KADAKKAVOOR P.O., KEEZHATTINGAL VILLAGE. **5. MUHAMMED YASIN, S/O.SHAHUL HAMEED ASUMA BEEVI, NOW EMPLOYED ABROAD, REPRESENTED BY POWER OF ATTORNEY HOLDER MOHAMMED RASHID, VANIKKUDY VEEDU, VILAYIL PURAIDOM, NILAKKAMUKKU, KADAKKAVOOR P.O., KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. **6. MOHAMMED NASSER, S/O.SHAHUM HAMEED ASUMA BEEVI, NOW EMPLOYED ABROAD, REP.BY, POWER OF ATTORNEY HOLDER, MOHAMMED RASHID, -DO- -DO- **7. MOHAMMED RASHID, VANIKKUDY VEEDU, VILAYIL PURAIDOM, NILAKKAMUKKU, KADAKKAVOOR P.O., KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM DIST. **8. MOHAMMED JAMEER, S/O.SHAHUL HAMEED ASUMA BEEVI, NOW EMPLOYED ABROAD, REP. BY POWER OF ATTORNEY HOLDER MOHAMMED RASHID, VANIKKUDY VEEDU, VILAYIL PURAIDOM, NILAKKAMUKKU, KADAKKAVOOR P.O., KEEZHATTINGAL DESOM, KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM DIST. *LEGAL REPRESENTATIVE OF THE DECEASED R2 IS IMPLEADED AS ADDL.R4 AS PER ORDER DTD. 17.12.2002 ON C.M.P.NO.2137/2002. **ADDL. RESPONDENTS R5 TO T8 ARE IMPLEADED AS LRs OF THE DECEASED R3 AS PER ORDER DTD.20.8.2009 IN I.A.NO.1885/2009. ADV. MR.G.S.REGHUNATH FOR R1, R2 & ADDL.R4 MR.M.RAMASWAMY MR.JEN.V.KURIAKOSE FOR ADDL.R5 TO 8 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.504 Of 1996 ---------------------- Dated this the 18th day of August, 2010. J U D G M E N T The plaintiffs 1 to 3 and 5 in O.S.No.116 of 1984 of the Munsiff Court, Attingal are the appellants. The appeal is directed against the judgment and decree in A.S.No.129 of 1988 of the Principal Sub Court, Attingal. The suit was filed for declaration of easement right over plaint F schedule pathway, injunction and for other consequential reliefs. The trial court dismissed the suit finding that the plaintiffs are not entitled to the reliefs claimed in the plaint. The appeal preferred by the plaintiffs was dismissed confirming the decree and judgment of the trial court. Parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. The brief facts necessary for the disposal of the appeal is as follows: Plaintiffs are the owners of plaint A, B, C, D and E schedule properties respectively. The defendants are the owners of the property lying on the northern side of plaint F schedule pathway. S.A.No.504 Of 1996 ::2:: F schedule is a pathway lying in between the properties of the plaintiffs and defendants. The pathway begins from Mananakku- Kadakkavoor road and ends in E schedule and the pathway is described as F schedule. The property of the defendants lies on the northern side of F schedule pathway and that of the plaintiffs lies on the south of the said pathway. According to the plaintiffs, the said pathway is the only pathway for the ingress and egress to the properties of the plaintiffs and that their predecessors were also used the pathway for their ingress and egress for the last more than 100 years as of right and thus they acquired right of easement by prescription. It is also the case of the plaintiffs that the pathway was formerly a chal as is shown in the litho plan which is produced as Ext.A6. According to the plaintiffs there is a 'kayyala' wall in between the A, B and D schedule properties and the lane, and there was an age old boundary separating the defendants' property and the lane. In short, it is pleaded that the pathway that lies in between the kayyala walls on either side of the pathway is the boundary of the plaintiffs and defendants. The suit was necessitated when the defendants demolished a S.A.No.504 Of 1996 ::3:: portion of the kayyala on their side and attempted to construct bunds from north to south touching the southern kayyala wall near plaint A, B and D schedule properties. The plaintiffs apprehended that the defendants at any time may close the path way. 3. The defendants are husband and wife. Admittedly, they own property on the northern side of the plaintiffs' property. In their joint written statement they have denied the material averments in the plaint and prayed for dismissal of the suit. According to them there is no pathway as F schedule on the north of plaint A, B, C, D plots or on the west of plaint E schedule property, that the plaintiffs have direct access to their properties from a road lying on the southern side of their property, that they have never used the pathway described as F schedule property, that the plaintiffs' property and the property of the defendants are separated by a strong kayyala wall, that no portion of F schedule property is in fact a portion of plaintiffs' property in survey No.1804, that the pathway mentioned in the documents of the defendants for the ingress and egress is in survey No.1804 S.A.No.504 Of 1996 ::4:: and in fact there is no kayyala wall separating the so called lane (pathway) from the defendants' property and the defendants have never demolished any such kayyala wall. On the basis of the said contentions the defendants prayed for dismissal of the suit. 4. Heard the substantial questions of law formulated in the memorandum of appeal. 5. Plaintiffs and defendants adduced evidence in support of their respective contentions. The evidence consists of the testimonies of PWs 1 to 5, DWs 1 & 2 and exhibits A1 to A9, B1 to B4, C1, C1(a), C2 and C2(a). 6. The trial court examined all the issues including the question as to whether there exists any pathway as described in plaint F schedule and as to whether the plaintiffs are using plaint F schedule pathway for ingress and egress to plaint A, B, C, D and E schedule properties. The court also examined other issues including the issue as to whether the plaintiffs are entitled to the reliefs of declaration and injunction prayed for in the plaint. S.A.No.504 Of 1996 ::5:: 7. Plaint F schedule pathway described in the plaint as a pathway having about 150 metres length and 2½ metres width begins from the Mananakku-Kadakkavoor road and ends in E schedule property, after passing through northern boundary of A, B and D schedule properties. Exts.A1 to A5 are the title deeds in the name of the plaintiffs. Their properties are comprised in survey No.1803. Defendants' property is lying immediately on the north of plaint A, B and D schedule properties. In the light of the contentions raised by the defendants that there is no pathway in existence as mentioned in F schedule, the plaintiffs produced several documents to prove the existence of the pathway. 8. The trial court observed that the plaintiffs have not filed any application to locate plaint F schedule pathway over which they claimed right, that they have not produced any documents to show that the pathway is comprised in survey No.1804 and that there is only a mere statement on the part of the plaintiff that the pathway is passing adjacent to plaint A, B and D schedule properties. The trial court on the basis of the S.A.No.504 Of 1996 ::6:: above said observations held that the pathway is in survey No.1803 i.e., in the plaintiffs' property. Referring to the recitals in Ext.A1 trial court observed that it is not mentioned that the pathway is part and parcel of defendants' property. The court also accepted the contentions of the defendants that there is no pathway in existence in between the properties of the plaintiffs and defendants and there was only a water chal in the place of pathway. The trial court also accepted the contention of the defendants that the water chal happened to be described as a pathway in recent documents and actually it is only a water chal for flow of rain water from the defendants' property. The trial court also held that the plaintiffs failed to locate and identify the pathway. 9. The trial court also observed that the definite case of the plaintiffs is that the pathway is in survey No.1803, that at the same time they would also state that in the northern boundary of survey No.1803 there is a kayyala wall and that they have no case that such a pathway was in existence and the defendants have destroyed their kayyala wall. The trial court refused to rely S.A.No.504 Of 1996 ::7:: on the oral evidence of PWs 1 to 5 and held that from the available evidence it can be concluded that what exists along the boundary line of the property is only a water chal and not a pathway as claimed by the plaintiffs. It is further found that there is no pathway in existence as scheduled in the plaint. The trial court also held that the plaintiffs are not using the pathway shown as F schedule for the ingress and egress to the property. The lower appellate court though not discussed in detail considered the issues and confirmed the findings of the trial court. 10. As I have stated earlier, the suit itself is for declaration of plaintiffs' right of way by easement by prescription. The definite case of the plaintiffs is that plaint F schedule pathway lies in between the properties of the plaintiffs and defendants and that the plaintiffs are using the pathway as of right from time immemorial. In the plaint it is also stated that a portion of pathway is in survey No.1803. The very fact pleaded that they have got right of way by easement itself shows that plaint F schedule pathway, according to the plaintiffs, runs through the S.A.No.504 Of 1996 ::8:: property of the defendants. The suit itself was filed by the plaintiffs on the allegation that the pathway which is lying on the northern side of plaint A, B and D schedule properties and on the west of plaint E schedule properties is used by the plaintiffs for their ingress and egress to their respective properties and that the defendants are trying to cause obstruction and to destroy the pathway and attempts are made to annex the pathway to their property. Ext.C1 is the first report of the commissioner. The commissioner also produced a sketch showing the lie and location of the properties of the plaintiffs and defendants and the F schedule pathway. Inspection date is on 25.5.1984. Ext.C1 report and sketch was prepared after issuing notice to both sides. The commissioner reported that there is a pathway lying in between the properties of the plaintiffs and defendants having 4 to 6 feet width and 450 feet length. The commissioner reported that the pathway is passing through northern boundary of plaint A, B and D schedule properties and it ends at E schedule property. The commissioner also noted obstructions caused at the beginning portion of the pathway and reported that an S.A.No.504 Of 1996 ::9:: attempt has been made to demolish the kayyala wall of the defendants which is the separating wall of the defendants property and the pathway, and to level the defendants property in level with the pathway portion. In the sketch prepared by the commissioner, the commissioner noted the main road, namely, Mananakku-Kadakkavoor road, passing through the western side of the properties, the location and lie of the pathway and the fact that the property owners of plaint A, B, D and E have direct access to the pathway. The commissioner also noted steps constructed for access to E schedule property and also noted the obstruction caused to the pathway at the beginning portion by the defendants. 11. Plaintiffs relied on the description of the properties scheduled in Exts.A7 & A8 sale deeds and Ext.A9 gift deed. Ext.A7 sale deed is of the year 1972, Ext.A8, 1962 and Ext.A9, 1959. Ext.A7 is the sale deed executed by sister of the first defendant by name Subaida Beevi in favour of the first defendant. Ext.A8 is the prior document. Going by the description in Exts.A7 & A8 the southern boundary of the S.A.No.504 Of 1996 ::10:: property conveyed is shown as 'CShgn' (pathway). Ext.A7 property is the 24 cents of land lying on the western most portion of the defendants property touching the Mananakku-Kadakkavoor road. The property lies in further east of Ext.A7 property is Ext.B1 property which is having an extent of 1.41 acres. Ext.B1 is a sthreedhana kuri executed in the year 1124 M.E.(1949) executed by the father of the first defendant in the name of the three daughters including the first defendant. Subsequently, by Exts.B2 & B3 sale deeds the first defendant's husband purchased the two plots allotted to the two sisters of the first defendant in Ext.B1. Thus the two plots are lying on the western side of the property allotted to the first defendant by Ext.B1. It is very clear that the properties obtained by the defendants by virtue of Exts.B1, B2, B3 and A7 are lying contiguously on the northern side of plaint A, B and D schedule properties. 12. Ext.A1 is the gift deed produced by the plaintiffs. Ext.A1 is of the year 1964. Ext.A1 gift deed is in respect of plaint A schedule property. The description in Ext.A1 shows that the northern boundary of plaint A schedule property is the pathway. S.A.No.504 Of 1996 ::11:: Ext.B1 is the dowry deed executed by the father of the first defendant in favour of his three daughters including the first defendant. Ext.B1 is executed in the year 1124 M.E.(1949). In Ext.B1, there is also reference to pathway. Exts.B2 and B3 are sale deeds in favour of the second defendant who is the husband of the first defendant. The other two shares allotted to the sisters are the subject matter of Exts.B2 & B3 sale deeds. Exts.B2 and B3 properties are the portions of Ext.B1 property. In Exts.B1 to B3 documents there is reference to the pathway lying on the southern side of Exts.B1 to B3 properties. The very same commissioner inspected the property again on 21.9.1986. The commissioner in Ext.C2 reported that at present nobody is using the pathway and that the pathway portion is now ladened with wild plants. In Ext.C2(a) plan prepared by the village officer, the properties of the defendants' were measured and it is shown in the plan. The plan was prepared in such a way that the pathway portion was also added to the property of the defendants. The plan was prepared with the help of survey records. From Ext.C2 (a) plan it is seen that the pathway portion is comprised in S.A.No.504 Of 1996 ::12:: survey No.1804. The southern properties are shown as properties comprised in survey Nos.1802 & 1803. Admittedly, the properties comprised in survey No.1803 are the properties belonging to the plaintiffs. Ext.C2(a) plan was prepared based on Ext.A6 litho plan as well. 13. I have discussed the material evidence adduced by the parties in the case. I have discussed the boundary descriptions in Exts.A7, A8, A9, B1 to B3, C1 report and the sketch, C2 report and C2(a) plan. The materials discussed above would positively show that there exists a pathway in between the properties of the plaintiffs and defendants. Ext.C1 report also shows that the property owners of plaint A, B, D & E schedule properties are using the pathway for their ingress and egress to their respective properties. The learned counsel for the appellants submitted that the evidence in this case which were referred above positively prove that there exists a pathway in between the properties of the plaintiffs and defendants, that the major portion of the pathway is comprised in survey No.1804 and that there is sufficient proof adduced by the plaintiffs which would go to show S.A.No.504 Of 1996 ::13:: that they are using the pathway as of right from time immemorial. The trial court as well as the appellate court overlooked the material evidence which I have discussed in the preceding paragraphs and concluded that there is no proof regarding the existence of the pathway. There is no justification for arriving such a finding in the wake of overwhelming evidence. The plaintiffs were non-suited based on the finding that there exists no pathway in between the properties of the plaintiffs and defendants. It is very clear that the material evidence in this case adduced by the plaintiffs are overlooked. There is no proper consideration of the oral and documentary evidence and the findings arrived at are directly against the documents which stands in the name of the plaintiffs and defendants. The court below did not considered the relevant documents in the proper perspective and the effect of those documents on the rights of the parties. In the circumstance, interference by this Court is necessary in the interest of justice. Hence the case has to be re- tried for which the matter has to be remanded to the trial court. The plaintiffs are at liberty to apply for a commission to measure S.A.No.504 Of 1996 ::14:: and demarcate F schedule pathway reported by the commissioner in Ext.C1 report. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the trial court for fresh disposal in accordance with law. The suit shall be disposed of within a period of nine months from the date of appearance of the parties. The parties shall appear before the court below on 28.9.2010. HARUN-UL-RASHID, Judge. bkn/-