IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 RSA.No. 173 of 2010() --------------------- AS.18/2008 of SUB COURT, QUILANDY OS.167/2005 of MUNI-MAGI.COURT, PERAMBARA .................... APPELLANTS/APPELLANTS IN AS/PLAINTIFFS IN OS ---------------------------------------------------------------- 1. GANAPATHIKANDY KUNHIRAMAN, S/O.KUNHIRAMUNNI, AGED 51 YEARS,NURSING ASSISTANT, PRIMARY HEALTH CENTRE, NOCHAD, ERAVATTOOR AMSOM, KALLOODE DESOM, KOYILANDY TALUK, KOZHIKODE DIST. 2. WIFE, THEKKEDATH VIJITHA,D/O.KUNHIRAMAN, AGED 39 YEARS, SWASTHAM, RESIDING AT GANAPATHIKANDY, ERAVATTOOR AMSOM,KALLODE DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENTS/RESPONDENTS IN AS/DEFENDANTS IN OS ------------------------------------------------- 1. KALATHUMKUNNUMMAL KUNHEKKAN, S/O.KANIYAN, AGED 55 YEARS,COOLIC, RESIDING AT KUNNATH KUNIYIL, ERAVATTOOR AMSOM, KALLODE DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. KALATHUMKUNNUMMAL NARAYANI,D/O.RAMAN, AGED 50 YEARS, SWASTHAM, RESIDING AT KUNNATH KUNIYIL, ERAVATTOOR AMSOM, KALLODE DESOM, KOYILANDY TALUK,KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.173 of 2010 --------------------------------------- Dated this 15th day of February, 2010 JUDGMENT Appellant against whom the courts below concurrently found as to his entitlement for a decree for prohibitory injunction has come up in second appeal urging by way of substantial question of law whether courts below erred in not granting relief to him. According to the appellants plaint schedule items belonged to them in the manner stated in the plaint. Appellant No.1 constructed a house in the suit property. Respondents/defendants are in possession of the property on the north-east of the suit property. According to the appellants respondents have separate access from Kaipram-Kallode road going along southern side of the suit properties to the property of respondents. But they attempted to open up a pathway through the suit property which necessitated the suit for injunction. Respondents contended that respondent No.2 has 6½ cents in RS.No.60 as per document No.944 of 1987. On the south of that property is the property of Janaki. On the east and west of the said property is the property of appellants. According to the respondents there is a way in existence through the suit property from 1977 onwards and even before that, used by them and others for access to their respective R.S.A.No.173 of 2010 2 properties. They claimed that they have no other way to have access to their property. Trial court found that though no right of easement by way of prescription or necessity is established by the respondents, even as on the date of the suit and before, there is a pathway through the suit property and accordingly refused to grant injunction in favour of appellants. That was confirmed by the first appellate court and hence the second appeal. It is contended by learned counsel that courts below having found that respondents had not acquired any conceivable right over the disputed pathway ought to have granted relief in favour of appellants. Learned counsel points out that even as per the evidence of DW1 disputed pathway came into existence just two months before institution of the suit. 2. Appellants came to the court seeking equitable relief of injunction in respect of the suit property. Though it is disputed by appellants that there was any way through the suit property, existence of the way having width of two meters at the southern point and length of 36 meters through the suit property is proved by Exts.C2 and C3 and evidence of DWs.1 and 2. It is seen from Ext.C2 that Advocate Commissioner inspected the property on the very next day of institution of the suit and found that there is a pathway through the suit property. It is true that what the respondents told the Advocate Commissioner is that the said way was formed about 2½ years before R.S.A.No.173 of 2010 3 institution of the suit while appellant No.1 told the advocate commissioner that it was formed two months before the institution of the suit. But as against that version of appellant No.1 to the Commissioner, what is pleaded is that there is no way through the suit property and attempt was made to open up a way by clearing bushes against which appellants had filed a complaint to the police and police registered a case (Ext.A29 is the FIR), So far as contention of respondents regarding formation of way through the suit property about 2½ years before institution of the suit is concerned it is their explanation that before that, there was a way through the suit property but by mutual agreement way was shifted to the present site as reported by the Advocate Commissioner in Exts.C2 and C3. True that version of respondents is denied by appellants. Whatever be that, trial court observed that respondents have not proved any right of easement by prescription or necessity over the disputed way but the finding is that on the day of suit there is a well formed pathway through the suit property which the appellant did not state in the plaint and accordingly equitable relief of injunction was refused to the appellants. That was confirmed by the first appellate court. As I stated the relief prayed is equitable. Courts below thought it fit not to exercise the discretion in favour of grant of injunction for reason which I have stated above. That cannot be said to be arbitrary or illegal. I am R.S.A.No.173 of 2010 4 persuaded to think that no substantial question of law is involved requiring this court to entertain the second appeal. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/