IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH JUNE 2011 / 30TH JYAISHTA 1933 RSA.No. 615 of 2011() --------------------- AS.222/2008 of DISTRICT COURT, KOTTAYAM OS.252/2005 of MUNSIFF COURT, VAIKOM .................... APPELLANT/PLAINTIFF --------------------------------------- MATHAI JOSEPH, S/O.JOSEPH, APPAKKOT HOUSE, POOZHIKKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENT(S): --------------- 1. BABY, S/O.THOMAS, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 2. P.T.JOSEPH @ OUSEPPACHAN, S/O.THOMAS, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 3. MAYA BABY, W/O.BABY, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 4. JERALD, S/O.THOMAS, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 5. MATHEW, S/O.THOMAS, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 6. MARY, W/O.GEORGE, AVIYIL HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 7. LISSY, W/O.GEORGE, VAYALAKKAL HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 8. KURIAN ALIAS KUNJACHAN, S/O.JOSEPH, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 9. P.J.FRANCIS ALIAS SEVICHAN, S/O.JOSEPH, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 10. ROASAMMA, D/O.JOSEPH, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 11. THRESSIAMMA, D/O.JOSEPH, NOW WORKING AT MERCY COLLEGE, PALAKKAD FROM PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 12. VALSAMMA, D/O.JOSEPH, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 13. SISTER ANEETA, D/O.JOSEPH, S.A.C.S., BISHOP KURIALASSERRY, MEMORIAL HOSTEL, VAIKOM FROM PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604. 14. P.J.JESEPH, S/O.JOSEPH, PUTHUKULANGARA HOUSE, POOZHIKAL KARA, KADUTHURUTHY VILLAGE, VAIKOM TALUK, POOZHIKAL P.O., PIN-686604, NOW RESIDING AT 246, COOPER, ROA, ROCHESTER, NY 14617, USA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.615 OF 2011 ............................................ DATED THIS THE 20th DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.No.252 of 2005 on the file of Munsiff Court, Vaikom is the appellant. Defendants are respondents. The suit was filed for declaration of right of way by easement of prescription over plaint schedule item No.4 way passing through plaint schedule item No.2 property of the first respondent and plaint schedule item No.3 property of the second respondent, reaching plaint schedule item No.1 property of the appellant. Appellant would contend that he and his predecessors have been using item No.4 way as of right and as an easement continuously, peacefully and without any interruption for more than 30 years as an easement and therefore he has prescribed a right of way. According to appellant, it is a motorable way having a width of 4 metres and respondents have no manner of right to cause any obstruction to that way and before the institution of the suit on 6.7.2005, second respondent removed earth through the pathway using a JCB bringing down the level of RSA 615/2011 2 his property and it was done to prevent appellant from using the way and therefore appellant sought a decree for declaration of right of easement by prescription and also a mandatory injunction to restore the portion of the pathway running through the property of second respondent to its original position. 2. Respondents 1 and 2 in their written statement contended that the way is a private way running through the properties of Mani Sebastian, Thomas Mathew, Joseph, Jerald etc, who were subsequently impleaded as additional respondents in view of the plea of non-joinder of necessary parties. It was contended that second respondent constructed a house in his property ten years ago and he sought permission of the first respondent and Joseph, who was the owner of the adjacent property to use the pathway to take construction materials to his property and on the temporary permission granted, he constructed the road through the southern side of his property and appellant has no manner of right to use that way and he has not been using that way as claimed and therefore he is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence, found that appellant RSA 615/2011 3 did not establish that he has been using item No.4 of the plaint schedule way as of right for the statutory period and therefore held that he has not acquired a right of easement by prescription. Appellant challenged the judgment before District Court, Kottayam in A.S.222 of 2008. Learned District Judge, after elaborate consideration of the evidence on record confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned senior counsel appearing for the appellant was heard. Learned senior counsel argued that courts below did not properly appreciate the evidence on the relevant aspects and ignored the fact that respondents, who denied the right of easement by prescription, did not step into the box and made themselves available for cross examination and an adverse inference should have been taken for their non examination and for their non examination evidence of PW1 should have been accepted. The learned senior counsel also pointed out that Pws 2 and 3 were not examined for the purpose of establishing that appellant has been using the way for more than 20 years and instead were examined to prove the existence of the way and RSA 615/2011 4 also to prove that vehicles were being taken through the way into item No.1 of the plaint schedule property and the evidence would establish that appellant has been using item No.4 of the plaint schedule way for the last more than 20 years prior to the institution of the suit and the said usage was as of right and as an easement openly and peacefully and therefore the decree as sought for should have been granted. 5. On hearing the learned senior counsel and going through the judgments of the courts below, I do not find any substantial question of law involved in the appeal. As rightly found by the courts below, when a decree for declaration of right of easement by prescription was sought, it is for the plaintiff to establish all the ingredients of the right claimed, as provided under Section 15 of the Indian Easement Act. Even if the evidence of Pws 2 and 3 are accepted as such they are insufficient to prove that appellant or his predecessors have been using item No.4 of the plaint schedule way for more than 15 years. The argument of the learned counsel is that their evidence would establish the existence of way and the evidence of PW1 establishes that he has been using the way for more than 20 years and as the RSA 615/2011 5 respondents did not come to the box and made available themselves for cross examination, there is no reason to disbelieve the evidence of PW1. Learned Munsiff and learned District Judge had given cogent and valid reasons for not relying on the evidence of PW1. In any event, the appreciation of evidence by the courts below cannot be said to be perverse warranting reappreciation of the evidence in exercise of the powers under Section 100 of Code of Civil Procedure. No material aspect was omitted to be appreciated by the courts below. In such circumstances, the factual findings of the courts below that appellant failed to establish that he has been using item No.4 of the plaint schedule way as of right and as an easement for 20 years prior to the institution of the suit is perfectly in accordance with evidence. Hence the courts below rightly dismissed the suit. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk