IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 RSA.No. 34 of 2010() -------------------- AS.20/2005 of SUB COURT, HOSDRUG OS.96/1999 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. MADAVANA IMMANUEL, S/O.AUGUSTINE, KAROLOM, BALAL VILLAGE, VELLARIKUNDU P.O., HOSDURG, KASARAGOD. 2. THANKAMMA IMMANUEL, W/O.MADAVANA IMMANUEL, DO. DO. 3. BIJU M. MANUAL, S/O.MADAVANA IMMANUEL, DO. DO. BY ADV. SRI.JOSE J.MATHAIKAL RESPONDENT/ RESPONDENT/PLAINTIFF ----------------------------------- THRESSIAMMA, W/O.LATE DEVASSIA, NARIKUZHIYIL HOUSE, RESIDING AT KAROLOM, BALAL VILLAGE, VELLARIKUNDU P.O., HOUSDURG, KASARAGOD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.34 of 2010 --------------------------------------- Dated this 28th day of January, 2010 JUDGMENT The second appeal is brought from judgment and decree of learned Sub Judge, Hosdurg in A.S.No.20 of 2005 confirming judgment and decree of learned Munsiff, Hosdurg in O.S.No.96 of 1999. Respondents claimed a right of way over plaint B schedule belonging to the appellants for access to plaint A schedule belonging to the former. The disputed way originated from Karalam Karivelluradukkam Panchayat road situated on the extreme east. There is no dispute that plaint A schedule was acquired by Devassia, predecessor of respondents as per Exts.A1 and A2 and on his death it devolved on the respondents. Plaint B schedule belonging to the appellants is situated on the immediate east of plaint A schedule. According to the respondents, there was no means of access to plaint A and B schedules from the panchayat road on the east (referred supra), appellants and respondents were walking through properties of the adjoining owners to reach the respective A and B schedules belonging to them and while so, on 02-05-1998 an agreement was executed between appellant No.1, respondent No.1 and owners of the property on the further east of plaint B schedule as per which a road having width of 10feet was formed from the said panchayat road, along R.S.A.No.34 of 2010 2 western side of the properties of the respective owners and reaching the house in plaint A schedule belonging to respondents. Appellants attempted to obstruct respondents using the said way and hence the suit. During the course of the suit alleging that appellants encroached into a portion of the disputed way respondents prayed for a decree for mandatory injunction by amendment of the plaint. Appellants denied that there was any such road extending to the property of respondents from plaint B schedule belonging to them. It is the contention of appellants that the disputed way is only up to plaint B schedule. Respondents and their predecessor tried to open up a new road through plaint B schedule against which police has registered a case. Appellants denied that there was any such agreement executed between appellant No.1 and others on 02-05-1998 and claimed that the document if any put up by the respondents is fraudulently created. Courts below on the evidence concluded that the disputed way extended up to plaint A schedule, respondents have right of access on the strength of Ext.A4, the agreement dated 02-05-1998 and granted relief to them. That judgment and decree were confirmed by the first appellate court. Hence the second appeal urging by way of substantial question of law whether courts below are justified in granting injunction in favour of respondents without a declaration of right claimed by the respondents. It is argued by learned counsel that finding regarding existence of pathway through plaint A schedule is not R.S.A.No.34 of 2010 3 legally justifiable, due execution of Ext.A4 is not proved and that at any rate, in the absence of declaration of right claimed by the respondents no relief could be granted. 2. Ext.C2, sketch prepared by the Advocate Commissioner shows the lie of the respective properties. The panchayat road goes along the extreme east in north-south direction. Immediately on its west is the property of Varkey. On the further west it is the properties of Marykutty James and Kurian. On the west of property of Kurian comes plaint B schedule and on its west is plaint A schedule. Appellants did not dispute that up to plaint B schedule, there is a pathway which originated from the said panchayat road. Respondents say that the way extended up to plaint A schedule and all of them gained access to the respective properties through the said way as per Ext.A4, agreement dated 02-05-1998. According to the appellants immediately before institution of the suit, respondents and their associates trespassed into the plaint B schedule and opened a new way extending from B schedule to the A schedule. The Advocate Commissioner first inspected the property on 08-02-1999 (suit was filed on February, 1999) and reported that the disputed way having width of 3 meters originated from panchayat road on the east extended up to the extreme (plaint A schedule) west going along with western side of the properties of appellants and others. In paragraph 5 of Ext.C1 it is stated that up to the property of appellants the pathway R.S.A.No.34 of 2010 4 appeared to be old. The Commissioner again inspected the property and submitted that Exts.C3 and C4. Commissioner reported that there was no specific way through property of appellants but there was “road width” of about 10 feet for the use of appellants and respondents. Again there was an inspection on 20-09-2001. Exts.C5 and C6 are the report and sketch. Commissioner reported that a portion of cowshed and the newly constructed building and courtyard in plaint B schedule encroached into the disputed way. In Ext.C7 Commissioner reported that the road at the starting point is blocked and at that time there was no road along the properties of Marykutty James and Kurian. The obstruction appeared to be about two years old. Ext.B4 series are the photographs. 3. Existence of the disputed way is reported in Exts.C1 and C2. PW4 is the prior owner of plaint B schedule belonging to the appellants and he has given evidence that there was a way having width of about 10 feet from plaint B schedule to plaint A schedule which respondents were using. Ext.A4 is the disputed agreement dated 02-05-1998 alleged to be executed between appellant No.1, respondent No.1 and owners of the properties on the further east up to the panchayat road on the extreme eastern side. Appellant No.1 when examined as DW1 denied that he signed Ext.A4. But PWs.2 and 3, mediators have given evidence that there was a dispute regarding right of access between respondents and appellants which was R.S.A.No.34 of 2010 5 mediated by them, a settlement was reached and Ext.A4, agreement was executed. Courts below found that there was no reason to disbelieve evidence of PWs.2 and 3 regarding due execution of Ext.A4. Learned Munsiff has also compared the disputed signature of appellant No.1 in Ext.A4 with his admitted signature and observed that the signatures appeared to be similar. It is argued by learned counsel for appellants that respondents had filed application to send Ext.A4 for expert opinion to ascertain authenticity of signature of appellant No.1 in Ext.A1 but that application was dismissed. Expert evidence is only opinion evidence and advisory in character. It is only one of the modes of proving due execution of the instrument. There is sufficient evidence regarding execution of Ext.A4 which the courts below accepted. From Ext.A4 it is clear that there was dispute between the parties regarding right of way, that dispute was settled and it was agreed between all of them that there would be a pathway having width of 10 feet. Thus, there is a grant in favour of respondents so far as the use of disputed pathway in the plaint B schedule is concerned. 4. Now the contention raised is that in the absence of declaration of the right claimed by respondents, no decree could be granted. It has been held by this court in Krishna Pillai Vs. Kunjupillai (1990(1) KLT 136) though in regard to a claim for injunction based on a plea of easement by prescription that a declaration is not necessary and that what is required is proof of R.S.A.No.34 of 2010 6 existence of the right claimed. Right claimed by respondents is proved by oral and documentary evidence. Hence a declaration of the right claimed by respondents is not required. 5. It is contended with reference to Ext.C7 that there is no such pathway in existence as of now. That, if at all it is so is only a development subsequent to the institution of the suit and if there is no such pathway respondents are to seek appropriate relief regarding that. This matter is not required or expected to be adjudicated in this proceeding. On going through the judgments under challenge and hearing learned counsel I am not satisfied that there is any substantial question of law involved in the appeal requiring interference. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/