IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 RSA.No. 720 of 2011() --------------------- AS.20/2007 of I ADDL.SUB COURT, KOZHIKODE OS.291/1999 of PRL.M.C.,KOZHIKODE-II .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- M.K.SAROJINI AMMA, W/O.RAGHAVAN NAIR, RESIDING AT PUTHIYEDATH HOUSE, OLAVANNA AMSOM, IRINGALLUR DESOM, KOZHIKODE TALUK. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOZHIKODE CIVIL STATION P.O., CALICUT - 673 018 2. THE EXECUTIVE ENGINEER (ROADS) PWD CIVIL STATION P.O., CALICUT - 673 018 3. OLAVANNA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OLAVANNA, KOZHIKODE. POST GURUVAYOORAPPAN COLLEGE, CALICUT - 673 019. 4. JANARDHANAN ADIYODI, S/O.M.K.CHIRUTHAKUTTY, OLAVANNA AMSOM, IRINGALLUR DESOM, KOZHIKODE, POST GURUVAYOORAPPAN COLLEGE, CALICUT - 673 019. ADV. SRI.K.SANEESH KUMAR FOR CAVEATOR SRI.G.UNNIKRISHNAN FOR R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 720 OF 2011 =========================== Dated this the 21st day of July,2011 JUDGMENT Plaintiff in O.S.291/1999 on the file of Munsiff Court,Kozhikode is the appellant. Respondents are the defendants. Suit was filed for declaration of right of way by easement of prescription over the plaint B schedule property. Plaint B schedule property is described as a way having a length of 30 feet and width of 12 feet in R.S.No.148/5 which is a Government puramboke land. Plaint A schedule property belongs to the appellant. It is contended that plaint B schedule property was the way being used as the access to the plaint A schedule property from the southern public road and the way is being used openly, peaceably and continuously for more than twenty years without interruption as of right and as an easement and thereby appellant has acquired RSA 720/2011 2 a right of way by easement of prescription. Originally fourth respondent was not impleaded in the suit. Respondents 1 and 2 in their written statement denied the right of way claimed and contended that fourth respondent is a necessary party to the suit. Fourth respondent was then impleaded. Respondents resisted the suit contending that appellant has no right of way through the plaint B schedule property and she is not entitled to the decree sought for. 2. Learned Munsiff on the evidence dismissed the suit finding that appellant did not establish a right of way over plaint B schedule property. Appellant challenged the judgment before Sub Court, Kozhikode in A.S.20/2007. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. Though learned Munsiff did not go into the question whether the ramp constructed to the south of the property jointly purchased by the appellant and fourth respondent under registered assignment deed RSA 720/2011 3 4124 of 1986, learned Sub Judge considered the question and relying on Ext.B7 to B12 found that fourth respondent after obtaining permission from the PWD constructed it and therefore held that the claim of the appellant from the box as PW1 that it was constructed by him is not correct. Learned Sub Judge dismissed the appeal confirming the finding of the trial court that appellant did not establish the right of way. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant and learned counsel appearing for the fourth respondent, who appeared on lodging a caveat for the fourth respondent were heard. 4. On hearing the learned counsel appearing for the appellant and the fourth respondent, it is clear that the facts stated by the learned Sub Judge in paragraph 11 of the judgment is not in dispute. It reads:- “11. The plaint A schedule item No.1 property is an extent of 2 RSA 720/2011 4 cents of property which is lying on the southern side of the plaint A schedule item No.1 property. It is an admitted fact that the plaint A schedule item No.2 property and its remaining portion alone belong to the father of the plaintiff and the Supl.4th defendant. The plaint A schedule item No.1 property and its remaining portion was jointly purchased by the plaintiff and suppl.4th defendant from one Prabhavathy as per the sale deed No.4124/1986. As per the Ext.A1 partition ded No.2131/1991 the plaintiff and Supl.4th defendant had partitioned the plaint A schedule item Nos.1 and 2 properties and the remaining portion of the said properties. RSA 720/2011 5 In the said partition of the plaint A schedule item Nos 1 and 2 properties were allotted to the share of the plaintiff and the remaining portions were allotted to the share of the Supl.4th defendant. The plaint A schedule item No.1 property and its remaining was a triangular plot having an extent of 2 ½ cents and the said property is lying on the southern side of the plaint A schedule item No.2 property and its remaining portion. As per the Ext.A1 partition deed 2 cents of property from the total extent of 2 ½ cents of the plaint A schedule item No.1 and its remaining portion was allowed to the share of the plaintiff, ½ cents of property lying on the RSA 720/2011 6 immediate eastern side of the plaint A schedule item No.1 property was allotted to the share of the supl.4th defendant. The property lying on the immediate southern side of the 2 ½ cents of property covered by the sale deed No.4124/1986 is a puramboke land. The plaint averments and the plaint schedule description would show that the portion of the puramboke land lying on the immediate southern side of the plaint A schedule item No.1 property is the plaint B schedule property. Mankavu Kunnathupalam road is lying on the immediate southern side of the plaint B schedule puramboke land. Thus the pleadings in the case would show that the plaint B schedule RSA 720/2011 7 property is a puramboke land lying on the immediate northern side of Mankavu-Kunnathupalam road and on the immediate southern side of the plaint A schedule item No.1 property. As stated earlier the claim of the plaintiff is that she has got a right of easement by prescription over the plaint B schedule property as an access to the plaint A schedule property as she and her predecessor have been using the said property as an access to the plaint A schedule properties by fulfilling the conditions for claiming a right of easement by prescription.” On going through the judgment of the courts below, I find no reason to interfere with the finding that appellant failed to establish a right of way by easement of prescription over plaint B schedule RSA 720/2011 8 property. Plaint B schedule property could not have been used as a way, unless the triangular portion of the property, obtained jointly by the appellant and the fourth respondent under document No.4124/1986, was also used as a way by the appellant or his predecessors. It is admitted case that till 1986, the said property was not belonging to the appellant or his predecessor. A right of easement by prescription cannot be successfully claimed unless it is the case that, the property covered under document No.4124/1986 was also used as a way. When appellant has no such case, I find that the findings of the courts below that appellant did not prove a right of way by easement of prescription over plaint B schedule property is perfectly correct. 5. The main grievance of the appellant is with regard to the finding of the first appellate court regarding the construction of ramp in the plaint B schedule puramboke land. Though learned Munsiff did not consider the said question, in paragraph 13 RSA 720/2011 9 of the judgment, the learned Sub Judge after finding that appellant failed to establish a right of way by easement of prescription through plaint B schedule property, considered the question whether the claim of the appellant, which was not pleaded in the plaint and only spoken to by her from the box as PW1 that the ramp was constructed by her is not correct. Learned Sub Judge based on Ext.B7 to B12 found that fourth respondent obtained permission from PWD and the ramp was constructed by him. The argument of the learned counsel is that respondents 1 and 2 in their written statement specifically contended that the ramp constructed by the fourth respondent is further towards the east of the plaint B schedule property and in the counter affidavit filed by the third respondent Panchayat also it is stated that the ramp constructed by the fourth respondent is not in the plaint B schedule property and the fourth respondent in his written statement contended that the ramp in the plaint B schedule property was RSA 720/2011 10 constructed by him and the first appellate court did not appreciate the descrepancy in the case projected by respondents 1 to 3 and the fourth respondent and therefore the finding is not sustainable. I do not find that in this suit there is any necessity to enter a finding on who constructed the ramp. The only question before the court is whether appellant has established a right of way by easement of prescription. Whether the ramp constructed by the fourth respondent is the disputed ramp in the plaint B schedule property or another ramp further to the east, is a matter to be settled in the suit especially when the ownership of the ramp was not a matter that arise for settlement especially when plaint B schedule property is a government puramboke land. In such circumstances, there is no necessity for the learned Sub Judge to enter a finding whether the ramp was constructed by the appellant or the fourth respondent. Hence it is made clear that the finding of the learned Sub Judge in paragraph RSA 720/2011 11 13 of the judgment on construction of the ramp is unnecessary and the question who constructed the ramp is left open to be decided in appropriate proceedings. Appeal is dismissed as no substantial question of law is involved. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006