IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 SA.No. 510 of 1997(B) -------------------------------- AS.3/1995 of II ADDL.SUB COURT,ERNAKULAM OS.1675/1990 of PRL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT(S): PLAINTIFFS ------------------------ 1. BABY MATHEW, S/O/ LATE MR.MATHEW, AGED 38 YEARS, BUSINESS, RESIDING AT MATTAMANA HOUSE NO.47/895, KALOOR, ERNAKULAM. 2. BABU MATHEW, S/O. LATE MR.MATHEW, AGED 34 YEARS, BUSINESS, RESIDING AT MATTAMANA HOUSE NO.47/895, KALOOR , ERNAKULAM. 3. BIJU MATHEW, S/O. LATE MR.MATHEW, BUSINESS, GED 26 YEARS, RESIDING AT MATTAMANA HOUSE NBO.47/895, KALOOR, ERNAKULAM. 4. MRS. SARA MATHEW, W/O. LATE MR.MATHEW, AGED 57 YEARS, HOUSE WIFE, RESIDING AT MATTAMANA HOUSE NO.47 /895, KALOOR, ERNAKULAM. BY ADV. SRI.K.P.VIJAYAN SRI.V.B.JINNAH SRI.BOBBY MATHEW RESPONDENT(S): DEFENDANTS ------------------------ 1. JOSE, S/O.VARIAMPARAMBIL JOSEPH, CHRISTIAN, AGED 44 YEARS, BUSINESS, RESIDING AT VARIAMPARAMBIL HOUSE POOCHAKKAL P.O., ALLEPPEY (EXPARTE). S.A. NO.510/1997 *2. JACOB ROY, S/O. VARIAMPARAMBIL JOSEPH, AGED 34 YEARS, BUSINESS, RESIDING AT VARIAMPARAMBIL HOUSE, POOCHAKKAL, P.O., ALLEPPEY DIST. *3. GEORGE ROY, S/O. VARIAMPARAMBIL JOSEPH, AGED 32 YEARS, BUSINESS, VARIAMPARAMBIL HOUSE, POOCHAKKAL HOUSE P.O., ALLEPPEY DISTRICT. 4. THRESSIAMMA JOSEPH, W/O. VARIAMPARAMBIL JOSEPH, RESIDING AT VARIAMPARAMBIL HOUSE, POOCHAKKAL P.O., ALLEPPEY DIST. *MEMO STATING THE DEATH OF R3 WHOSE NAME IS WRONGLY SHOWN AS GEORGE ROY INSTEAD GEORGE ROGI IS RECORDED VIDE ORDER DTD. 10.1.07 IN MEMO C.F.3869/04 DTD. 26.7.04 R2 AND R4 ARE RECORDED AS THE LRS OF DECEASED R3 VIDE ORDER DTD. 10.1.07 IN MEMO (C.F. 6835/06 DTD. 24.11.06( FILED BY THE COUNSEL FOR THE APPELLANT. ADV. SRI.T.V.ANANTHAN SRI.C.D.JOSE SRI.B.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 510 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010. JUDGMENT The plaintiffs, who are non-suited by both the courts below, are the appellants. 2. Plaint A schedule property belonged to the father of the first plaintiff, and the husband of the fourth plaintiff. He obtained it under Ext.A1 dated 4.10.1968. Plaint B schedule is shown as the lane. According to the plaintiffs, plaint B schedule is part of plaint A schedule. A compound wall had been put up separating the properties. But that compound wall was demolished by the defendants. It is alleged that on 6.10.1990 the defendants again attempted to destroy the boundary wall put up by the plaintiffs. Apprehending further trouble from the defendants, the suit was laid. 3. The suit was resisted by defendants 2 to 4. According to them, the first plaintiff had purchased 18.25 S.A. 510/1997. 2 cents of property comprised in Sy. No.87/3 as per document dated 18.7.1970. In 1987 a partition deed was executed, whereby the above mentioned property measuring 18.25 cents was allotted to defendants 2 to 4. Since plaint A schedule property had no access to Alwaye-Ernakulam road, they were granted a right of way through the adjacent property. The plaintiffs had a right to use plaint B schedule property to reach their property. According to defendants 2 to 4, plaint B schedule property absolutely belong to them and they are the owners of the same. It is pointed out that a compound wall needs to be laid on the eastern side of plaint B schedule property so as to avoid future trouble. 4. On the basis of the above pleadings, necessary issues were raised by the court below. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exs.A1 to A3 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B9 marked. Ext.X1 is the third party exhibit. After a consideration of the materials before it, the court below S.A. 510/1997. 3 came to the conclusion that the plaintiffs were not successful in establishing their case and dismissed the suit. 5. Plaintiffs carried the matter in appeal as A.S. 3 of 1995 before the Sub Court, Ernakulam, and that was also dismissed. Aggrieved by the same, the plaintiffs have come up in appeal. 6. Both the courts below found that plaint B schedule forms part and parcel of the property owned by the defendants. Even though reliance was placed on Ext.A1 document, it was found that in fact Ext.A1 does not allot plaint B schedule property to the plaintiffs. It was also found that all that the plaintiffs have is the right of way. Their claim that plaint B schedule forms part of plaint A schedule was found against. In fact both the courts have found that permission was granted to the plaintiffs to take lorry for construction purpose on the specific understanding that after the construction work is over the wall would be reconstructed. It is true that both the parties obtained the property from a common predecessor in interest. Even S.A. 510/1997. 4 going by the documents relied on by the plaintiffs, they have only right to use the pathway made mention of in the document. The defendants at no point of time had expressed their disinclination to let the plaintiffs to use the way. The finding of the court below is that except for the right to use the way, the plaintiffs have no ownership over the same. 7. The courts below have considered the matter in considerable detail. 8. Being essentially a question of fact, and since the conclusions drawn by the court below are purely based on appreciation of the evidence in the case, no question of law arises for consideration in this Second Appeal. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.