IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 RSA.No. 273 of 2010() -------------------------------- AS.187/2006 of I ADDL. DISTRICT COURT, PALAKKAD OS.457/2003 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/DEFENDANT -------------------------------------------------------- PATHUMMA BEEVI, W/O.MUHAMMED ALI ROWTHER AGED 71 YEARS, RESIDING AT PAPPANKALAM, PUDUNAGARAM AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------- ASSAN MOHAMMED, S/O.SHEIK IBRAHIM ROWTHER, AGED 58 YEARS, RESIDING AT MANJALURKALAM, SATHRAVATTARAM, PUDUNAGARAM AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010,THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING: rs. RSA.No. 273 of 2010 ORDER ON I.A. NO.678/2010 IN RSA NO.273/2010 DISMISSED 14/07/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 273 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010. JUDGMENT Faced with the concurrent findings against her and having suffered a decree, the defendant in O.S. 457 of 2003 before the Munsiff's Court, Chittur has come up in appeal. Parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaint schedule property, which originally belonged to the defendant was obtained by the plaintiff as per Ext.A2 dated 4.10.1975. The defendant had obtained the property under Ext.A1 dated 19.9.1961. Plaint A schedule property has well defined boundaries on the south-west and northern sides. Defendant's property, in which she resides is situated on the northern side of plaint A schedule property. It is pointed out that at the time of sale deed No.663/1961 there was no separate vehicular access to plaint A R.S.A.273/2010. 2 schedule property and therefore the assignor granted the right to use her remaining property as a means of access to plaint A schedule property. Such a recital was included in the sale deed itself. The said way is shown as plaint B schedule property. Subsequent purchasers are also entitled to the benefit of the above clause as it is a covenant running with the land. Of late, the defendant is trying to obstruct the use of plaint B schedule pathway by the plaintiff, and if the defendant succeeds in her attempt, the plaintiff will not be able to take his vehicle to plaint A schedule property. The defendant had no right to do so. Hence the suit. 3. The defendant resisted the suit. She denied the allegations in the plaint. It is pointed out that the plaintiff has got alternate ways. There is a Panchayat way starts from P.W.D. road along the north eastern corner of his property. The way mentioned in the plaint has never been used by the plaintiff and it is the sole and exclusive means of access for the defendant to her property. Plaint B R.S.A.273/2010. 3 schedule is infact a portion of her house and compound and such a way does not exist. Contending that the plaintiff had no manner of right to use any portion of her property, she prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts. A1 to A3 from the side of the plaintiff. Defendant had D.W.1 examined and Exts.B1 to B3 marked. Exts.C1 and C1(a) are the commission report and plan. Ext.X1 is the third party exhibit. 5. On an appreciation of the evidence in the case, the trial court found that there is a covenant in the document, which enables the plaintiff to use the way, which was located by the commissioner in his report and plan, i.e. Exts.C1 and C1(a). Accordingly, a decree was granted in favour of the plaintiff. R.S.A.273/2010. 4 6. The defendant took up the matter in appeal as A.S.187 of 2006 before the District Court, Palakkad. The District Court reconsidered the evidence on record and came to the same conclusion as that of the trial court. Accordingly, the appeal was dismissed. 7. Learned counsel appearing for the appellant before this court pointed out that the courts below have not adverted to the evidence and the facts in the proper perspective and that has resulted in a wrong decision. It is not correct to say that the properties were purchased after the acquisition was over. That would be evident from Ext.B1 document. It is the earliest assignment deed in point of time. It was also pointed out that the commissioner has not located the way as found by the courts below and there is no such way as claimed by the plaintiff in his plaint shown as plaint B schedule. It was also contended that the plaintiff has other means of access to his property. R.S.A.273/2010. 5 8. None of the above contentions has any basis. The courts blow have adverted to the various deeds of title produced both the plaintiff and the defendant and has found that the recitals in Exts.A1, A2 and the evidence of D.W.1 show that there is a way granted as per the document and the same is B schedule pathway. In fact, D.W.1 had admitted that except the B schedule pathway, there is no other way through which the plaintiff can take vehicles to plaint A schedule property. The claim of the defendant was that the way, which was originally granted as per Ext.A1 was lost by the acquisition proceedings. On evidence, both the courts below found the said claim to be false. There have been documents subsequent to the acquisition, which retains the right of use of the pathway by the subsequent assignees. 9. Equally without force is the contention that the plaintiff has not proved his right to use B schedule pathway. The document of title relied on by the plaintiff clearly reserves the right of way in favour of the plaintiff. If that be R.S.A.273/2010. 6 so, it is an easement by grant. It has already been found that the contention of the defendant that the way does not exist cannot be accepted. Moreover, both the courts below found that the commissioner has been able to locate the way and the rough sketch produced by the commissioner marked as Ext.C1(a) shows the location of the pathway. It is true that with regard to a portion of the B schedule pathway, the commissioner has stated that there are no signs of recent taking of vehicles to plaint A schedule. But that by itself is not a ground to negative the claim put forward by the plaintiff. The trial court has extracted the relevant portion in its judgment. 10. The above facts are sufficient to show that there is a right of way granted to the defendant when she originally purchased the property as per Ext.B1 and subsequent assignees were also granted the same right of way by the defendant and the subsequent assignors. R.S.A.273/2010. 7 11. None of the contentions put forward by the appellant is tenable. The result is that this appeal is without merits and it is liable to be dismissed. Accordingly, this Second Appeal is dismissed in limine. P. BHAVADASAN, JUDGE sb.