IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 RSA.No. 256 of 2011() --------------------- AS.216/2010 of DISTRICT COURT, THRISSUR OS.2388/2008 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- HARIDAS, AGED 42 YEARS, S/O.KADAKKATTIL AYYAPPAKUTTY, ELTHURUTH P.O. KARYATTUKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SANTHA, AGED 60 YEARS, W/O.THATTUPARAMBIL LATE VASU, ELTHURUTH P.O., KARYATTUKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK - 680 611. 2. SANTHOSH, AGED 28 YEARS, S/O.THATTUPARAMBIL LATE VASU, ELTHURUTH P.O., KARYATTUKARA DESOM, ARANATTUKARA VILLAGE, THRISSUR TALUK - 680 611. SRI.DEVAN RAMACHANDRAN FOR (CAVEATOR) SRI.K.M.ANEESH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.256 OF 2011 ............................................ DATED THIS THE 7th DAY OF APRIL, 2011 JUDGMENT Plaintiff in O.S.2388 of 2008 on the file of Munsiff Court, Thrissur is the appellant. Respondents are the defendants. Appellant instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint A schedule property belongs to him under Ext.A2 sale deed 4133/2006 of SRO, Thrissur and the property of respondents lies to its south and plaint B schedule is the road having a width of 3.1 metres which starts from the road on the west of plaint A schedule property and proceeds towards the east side and turns to the south and touches the southern boundary of plaint A schedule property and it is the only way available to the plaint A schedule property. The plaint A schedule property was purchased by the parents of appellant under Ext.A1 sale deed dated 9.11.1963 and since then they have been using plaint B schedule way as of right and as easement for more than 40 years and therefore they have a right of way by easement of prescription over plaint B schedule RSA 256/2011 2 property. It is also contended that as there is no other way, they are also entitled to a right of easement by necessity. It is contended that the width of plaint B schedule way at the starting point was only 2 metres and later, the mother of the appellant purchased property for widening the above pathway as per Ext.A3 sale deed in 1997 and on 19.8.2008, respondents attempted to reduce the width of B schedule way, and they have no right to do so and appellant filed complaint before the RDO and as respondents have no right to cause any obstruction, they are to be restrained by a permanent prohibitory injunction. Respondents resisted the suit denying the right of way as claimed and contended that in 2006 permission was given to the appellant to take lorries through the property of the respondents as appellant was constructing a house in his property and though appellant was directed to close the pathway, he conveniently blocked the access to his property from the western side of his property and filed a complaint before RDO and thereafter approached the court and he is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of Pws 1 to 3, DW1, RSA 256/2011 3 Exts.A1 to A3, B1 and B2 and C1 and C1(a), dismissed the suit finding that appellant did not establish the right of way as claimed. Appellant challenged the judgment before District Court, Thrissur in A.S.216 of 2010. Learned District Judge, on re- appreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant and respondents were heard. On hearing the learned counsel, when it is found that no substantial question of law is involved in the appeal, learned counsel appearing for appellant sought time so as to settle the dispute with the respondents, submitting that if the case is referred to the Adalath, it is likely to be settled. When the case was posted today, learned counsel appearing for appellant submitted that there is no chance for a settlement and the appeal be disposed of. 4. Though the suit is only one for injunction, appellant is claiming a right of way by easement of prescription as well as easement of necessity over plaint B schedule way to plaint A schedule property. Plaint A schedule property originally obtained RSA 256/2011 4 by the parents of the appellant under Ext.A1 sale deed in 1963. Subsequently, under release deed No.322/1981, the father released right in favour of the mother of the appellant. It is thereafter under Ext.A2 settlement deed, plaint A schedule property was set apart to the appellant in 2006 whereunder he claims right in the plaint A schedule property. The case of appellant is that plaint B schedule way was in existence even before Ext.A1 sale deed and since then appellant and his predecessors have been using the same as of right and as an easement and therefore he has established a right of easement by prescription. Though a right of easement by necessity was claimed, there is no case that plaint A schedule property and plaint B schedule property originally belonged to one and the same person and it was thereafter split up and thereby appellant has a right of easement by necessity. Hence the claim of easement of necessary will not lie. The only question is whether appellant has established a right of easement by prescription. 5. Learned Munsiff on a proper appreciation of evidence found that appellant did not establish a right of way by easement of prescription. First appellate court, on reappreciation of RSA 256/2011 5 evidence confirmed the findings. That factual finding cannot be interfered in second appeal, when the finding is definitely in accordance with the evidence on record. Hence as there is no substantial question of law involved in the appeal, it is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk