IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 SA.No. 585 of 2000(C) -------------------------- AS.95/1994 of PRL.SUB COURT,IRINJALAKUDA OS.1795/1987 of PRL.M.C.,IRINJALAKUDA .................... APPELLANT(S):APPELLANT/PLAINTIFF ---------------------------------------------- JOY, S/O. THALIYATH OUSEPH, IRINJALAKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.N.P.SAMUEL SRI.V.R.REJITHKUMAR RESPONDENT(S):RESPONDENTS/DEFENDANTS ------------------------------------------------------- 1. VARGHESE, S/O. LATE THALIYATH OUSEPH, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA, THRISSUR DISTRICT. 2. FRANCIS, S/O. LATE THALIYATH OUSEPH, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA, THRISSUR DISTRICT. 3. VIJO, S/O. FRANCIS, THALIYATH HOUSE, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA, THRISSUR DISTRICT. 4. PAUL, S/O. LATE THALIYATH OUSEPH, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA, THRISSUR DISTRICT. R1 & R3 BY ADV. SRI.THOMAS NINAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON 04/01/2011 DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 1492/2000 IN S.A. NO. 585/2000 DISMISSED 04/01/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 585 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2011. JUDGMENT The plaintiff, who was concurrently non-suited by the courts below is the appellant. 2. The suit was one for prohibitory injunction. According to the plaintiff, he obtained plaint A schedule property by virtue of Ext.A1 partition deed dated 7.4.1997. There is a way shown as item No.2 in the schedule, which has been provided for the use of the plaintiff and defendants 1, 2 and 4 in Ext.A1 partition deed and that way has been in use by its executants. Complaining that the defendants are trying to obstruct the use of the way by the plaintiff, the suit was laid. 3. Defendants 1 and 3 resisted the suit. They admitted the way in the partition deed. According to them, the way now shown in the plaint is not the way S.A.585/2000. 2 made mention of in Ext.A1 partition deed. The plaintiff is not entitled to use exclusively the building as per the terms of the partition deed. The defendants are also entitled to make use of the building. There is another way for the plaintiff to reach his property. Pointing out that the plaintiff is not entitled to any relief, they prayed for a dismissal of the suit. 4. The fourth defendant filed the written statement, in which he claimed that a way having 20 links provided in Ext.A1 deed is being used by the plaintiff, defendants 1 and 2 and the fourth defendant as of right. The property set apart to the fourth defendant is lying on the northern side of the property of the plaintiff and defendants 1 and 2. The property on the western side has been allotted to Paulose. There is a Panchayat way situate on the southern side of plaint schedule property. The way shown in the plaint schedule is absolutely necessary to reach the fourth defendant's property also. Claiming that he is also S.A.585/2000. 3 entitled to make use of the way made mention of by the plaintiff, he supported the plaintiff for a decree in terms of the plaint. 5. Based on the above pleadings, necessary issues were raised by the court below. The evidence consists of the testimony of P.Ws.1 to 4 and Exts.A1 and A2 marked from the side of the plaintiff. The defendants examined D.Ws. 1 and 2. Exts.C1 to C4 are the commission reports and plans. On a careful scrutiny of the evidence in the case, the trial court came to the conclusion that the way now shown in the plaint is not the way made mention of in Ext.A1 partition suit and therefore non-suited the plaintiff. An appeal filed by the plaintiff met the same fate. 6. The following questions of law are seen raised in the memorandum of second appeal: “(a) When defendants 1 and 2 are parties to Ext.A2 document, are they not estopped from S.A.585/2000. 4 contending that on the east of plaint A schedule property there is no way when Ext.A2 provides such a way? (b) Can documentary evidence provided by Ext.A1 and A2 be superseded by oral evidence? © When admission is best evidence, were the courts below correct in ignoring the admission contained in Ext.A1 and A2 regarding existence of a twenty links way on the east of plaint A schedule property especially when there is no case that the recitals contained in Ext.A1 and A2 happened to be made due to a mistake? (d) When commission reports and plans establish beyond any doubt the existence of B schedule way and its user by the plaintiff, were the courts below correct in discarding this important piece of evidence without showing that the statements contained in the reports are wrong? (e) When Ext.C1 and C4 establish that there is no other way except B schedule way for the plaintiff to reach the Kayyala and his paddy fields and when it is proved that before partition the properties were remaining common, were the courts below correct when they failed to come to a S.A.585/2000. 5 finding that at any rate an easement of necessity has been proved and the plaintiff is entitled to use B schedule way as an easement of necessity?” 7. Learned counsel appearing for the appellant pointed out that the courts below have erred both on facts and in law in non-suiting the plaintiff. The commission report clearly shows the existence of the way as alleged in the plaint and he is entitled to use the same going by the recitals in Ext.A1 partition deed. The courts below were not justified in coming to the conclusion that the way now claimed by the plaintiff is different from the way shown in Ext.A1. It was also contended that the courts below ought to have seen that there is no other way for the plaintiff to reach the outside world. 8. Learned counsel appearing for the respondents on the other hand contended that both the courts have in considerable detail evaluated the evidence and has S.A.585/2000. 6 construed the documents produced by both the parties. It was thereafter the courts below found that the pathway made mention of in the plaint is not the way made mention of in the partition deed. The finding is essentially a finding on the question of fact and no substantial question of law arises for consideration in this second appeal. 9. Ext.A1 partition deed of the year 1969 is admitted by all parties. One Paulose, the fourth defendant, defendants 1 and 2 and the plaintiff were parties to the said document. Plaint A schedule was set apart to executant No.1, B schedule to fourth defendant and C schedule to defendants 1 and 2 and plaintiff jointly. The recital of the way made mention of in Ext.A1 is seen extracted in the judgment of the trial court. It is therefore unnecessary to reproduce the same. There is also a kayyala building made mention of in Ext.A1 partition deed. The plaintiff lays exclusive right of use to the kayyala building. Executant Nos. 3 to 5 in Ext.A1 later executed Ext.A2 partition deed S.A.585/2000. 7 dated 17.12.1977. In the said deed, the plaintiff is the third executant and he is allotted B schedule property. A schedule property is allotted to defendants 1 and 2. Both the courts below found that the kayyala building is seen occupied by defendants 1 and 2 and they have a right to use the building. Therefore, the claim of the plaintiff for exclusive use of the building was declined by the courts below. No grounds are made out to interfere with the said finding and it is only to be confirmed. 10. What now arises for consideration is whether the way made mention of in the plaint is the way seen stated in Ext.A1 document. The first report and plan of the commissioner are marked as Exts.C1 and C2 and the second survey plan and report are marked as Exts.C3 and C4. A reading of Ext.A1 would clearly indicate that the pathway made mention of therein lies in the east-west direction. Going by Ext.A1 deed, the pathway lies on the south of B schedule property allotted to the fourth defendant and to S.A.585/2000. 8 the north of C schedule item No.5 allotted jointly to the plaintiff and defendants 1 and 2. Going by the description in Ext.A1, it can be seen that the B schedule property made mention of therein lies on the northern side of the common pathway. In Exts.C2 and C4 the commissioner has clearly identified the pathway made mention of in Ext.A1 document. The Panchayat road shown in the commission report reaches on the south-western side of the kayyala building. According to the plaintiff, he would say that is the way provided in Ext.A1 starting from the Panchayat road and proceeds towards east through the southern side of the kayyala and that is the only means of access. He gets ample support in this regard from the fourth defendant also. But a reading of Ext.A1 would belie their version. When cross-examined, P.W.2 has admitted that the way provided in Ext.A1 is only for the purpose of sharers to reach the Kolnilam on the eastern side. A comparison of Exts.A1 and A2 partition deed will clearly show that neither at the time of Ext.A1 nor at the time of Ext.A2, the way now mentioned in S.A.585/2000. 9 the plaint did exist. It could be so said because there is no mention of it either in Ext.A1 or Ext.A2. However, as already noted, the commissioner has been able to clearly locate the way made mention of in Ext.A1. The commissioner has located the said way in Ext.C4 plan leading to the plaint A schedule property and also to the Kolnilam on the eastern side. The way so located by the commissioner answers the description in Ext.A1. It can be clearly seen that the pathway located by the commissioner as per Exts. C3 and C4 is seen sandwiched between B schedule property and C schedule property dealt with under Ext.A1 document. If as a matter of fact, the way now claimed by him is the one mentioned in Ext.A1 partition deed, surely one of the boundaries of any one of the properties dealt with under Ext.A1 ought to have been the Panchayat road. 11. It was the above facts which compelled the courts below to come to the conclusion that B schedule pathway is not the common pathway which the plaintiff can S.A.585/2000. 10 claim as of right on the basis of Ext.A1 partition deed. Both the courts below on an evaluation of the evidence came to the conclusion that the pathway starting from the Panchayat road came into existence after Ext.A2 partition of 1977 and if that be so, the way now claimed could not have been taken in by Ext.A1 document. The commissioner has also noticed that there is absolutely no obstruction for the use of the pathway made mention of in Ext.A1 and located by him in Exts.C3 and C4 report and plan. 12. On an re-evaluation of the evidence, it is found that the courts below were perfectly justified in coming to the conclusion as they did. The decisions are based on an appreciation of the evidence and as rightly pointed out by learned counsel for the respondents, no question of law, much less any substantial question of law, arises for consideration in this case. S.A.585/2000. 11 This Second Appeal is without merits and it is accordingly dismissed. The parties will suffer their respective costs. P. BHAVADASAN, JUDGE sb.