IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 RSA.No. 474 of 2011() --------------------- (A.S.25 OF 2007 ON THE FILE OF III ADDITIONAL DISTRICT JUDE, THIRUVANANTHAPURAM) O.S.1430 OF 2005 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM) APPELLANTS/PLAINTIFFS: ------------------------------------------ 1. G.RAVIKUMAR, S/O.GOVINDAN, RESIDING AT CHANTHU BHAVAN, MUKKOLA P.O. THIRUVANANTHAPURAM. 2. T.SEETHA, D/O.THANKAMONY AND W/O.G.RAVIKUMAR, RESIDING AT CHANTHU BHAVAN, MUKKOLA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR RESPONDENT(S): DEFENDANTS: -------------------------- 1. TOMS KURIEN, S/O.KURIEN, RESIDING AT T.C.3/325/2, KALLUNKAL HOUSE, GREEN VALLY, KOWDIAR VILLAGE, MUTTADA, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. 2. MAYA TOMS, W/O.TOMS KURIEN, RESIDING AT T.C.3/325/2, KALLUNKAL HOUSE, GREEN VALLY, KOWDIAR VILLAGE, MUTTADA, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. 3. BIJU KURIEN, S/O.KURIEN, RESIDING AT T.C.3/325/2, KALLUNKAL HOUSE, GREEN VALLY, KOWDIAR VILLAGE, MUTTADA, KOWDIAR P.O., THIRUVANANTHAPURAM-695 003. 4. M.J.ABRAHAM, S/O.JOHN, RESIDING AT V.P.1/113, ARATHI, KAMALA GARDENS, VAZHAYILA WARD, PEROORKKADA, THIRUVANANTHAPURAM-695 005. ADV. SRI.R.S.KALKURA FOR R1 SRI.M.S.KALESH FOR R1 SRI.HARISH GOPINATH FOR R1 SRI.V.VINAY MENON FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.474 of 2011 ............................................ DATED THIS THE 14th DAY OF OCTOBER, 2011 JUDGMENT Appellants are plaintiffs in O.S.1430 of 2005 on the file of First Additional Munsiff Court, Thiruvananthapuram. The suit was filed for declaration of right of easement of way over plaint B schedule property contending that, it is the way available to the plaint A schedule property and the respondents are not entitled to cause any obstruction to the way. Appellants contended that the first appellant has title to the plaint A schedule property as per Ext.A1 sale deed and he has been in possession of the property since the date of the sale deed and it was originally a paddy field surrounded by paddy fields on all sides and appellants converted it into garden land and planted coconut sapplings and there was a nadavarambu having a length of 300 feet and width of 3 feet lying east west starting from the northern Madathunada Puthiya temple and leading to plaint A schedule property which lies to the south and it was having paddy fields on both sides and that was the only way available to the plaint A schedule property RSA 474/2011 2 which was being used from time immemorial and the appellants are therefore entitled to a right of way and respondents are not entitled to cause any obstruction. 2. Respondents resisted the suit contending that O.S.696 of 2000 was earlied filed by the first appellant and another in respect of the very same subject matter and that suit was dismissed on 25.1.2002 and no appeal was filed and it has become final and it is suppressing that fact, the suit was filed. It was contended that respondents 1 and 2 are husband and wife and third respondent is the brother of the first respondent and they purchased 48 cents in Survey No.416/19, 413/7, 416/5 and 416/19 of Kudappanakunnu Village in 2000 under three sale deeds which are lying together within common boundaries and at the time of purchase of the property, it was planted with plantains, tapioca and other yielding trees and the pathway at the width of 3.6 metres ending at the plot of the first respondent starts from an existing public pathway having a width of 3 metres lying on the northern side of the property of respondents and that way starts from Udiyannoor temple and proceeds further towards west and there is a nadavarambu through the western RSA 474/2011 3 and southern side of the properties of the respondents which deviates from that pathway through which appellants have access to their property. That nadavarambu was replaced with granite foundations constructed by the adjacent plot owners which is being used by the appellants as an access to the 3 metre width pathway and there is another nadavarambu on the eastern side of the property of first respondent which touches thoduvarambu lying on further east and appellants are having access to that way also and they are not entitled to the decree sought for. 3. Learned Munsiff on the evidence of PW1, DW1, CW1, Exts.A1 to A4, B1 to B17 and C1 dismissed the suit holding that appellants did not establish the right of way over plaint B schedule property. Learned Munsiff found that in view of the institution of O.S.696 of 2000 by the first appellant, which was dismissed under Ext.B1 and B2 decree and judgment, the claim is barred under Rule 2 of Order II of Code of Civil Procedure. Appellants challenged the decree and judgment before District Court, Thiruvananthapuram in A.S.25 of 2007. Learned District Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal finding that the RSA 474/2011 4 decree in O.S.696 of 2000 operates as res judi cata. It is challenged in the second appeal. 4. Learned counsel appearing for appellants were heard. The argument of the learned counsel is that courts below did not properly consider the evidence on record and when the evidence establish that plaint B schedule property is the only way available to the plaint A schedule property, which was being used from time immemorial a decree as sought for should have been granted. 5. Admittedly, first appellant instituted O.S.696 of 2000 earlier. It is a suit for injunction restraining the respondents from preventing the appellants from using the plaint B schedule pathway for their ingress and egress to the property, contending that plaint schedule property therein was originally a paddy field and after appellants purchased, it was converted into a garden land and the way available to the property cannot be obstructed by the respondents. Learned Munsiff as is clear from Ext.B1 judgment, considered the question whether appellants have a right of way as claimed and found that appellants have no right of way. That finding was not challenged by the appellants. In the RSA 474/2011 5 light of the said finding, which has become final, appellants are not entitled to re-agitate the same question. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk