IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 SA.No. 459 of 1999(D) --------------------- AS.131/1995 of ADDL.DISTRICT COURT, THRISSUR OS.128/1992 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT(S): DEFENDANT: -------------------------------------------- VALIYAKATH KORISSERI ABDULLAH, S/O.ABDURAHIMAN, VENMANADU AMSOM DESOM, CHAVAKKAD TALUK. BY ADVS. SRI. G.SREEKUMAR CHELUR SRI.R.RAJESH KORMATH, SMT.PREETHY KARUNAKARAN, SMT.M.R.MINI, SMT.MEENA.A., SRI.JAYKAR.K.S. SRI.RAHUL VARMA, SRI.V.S.ROBIN, SMT.SANJANA R.NAIR. RESPONDENT(S): PLAINTIFF: -------------------------------------------- MUHAMMED ABDURAHIMAN SAHIB, MEMORIAL HIGH SCHOOL, VENMENADU, REP. BY MANAGER, MUSLIYAMVEETTIL, KORISSERY MUHAMMED HAJI, S/O.ABDU. BY ADV. SRI.C.VATHSALAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.1201/1999, 2053/2000 AND I.A.NO.1885/2006 IN S.A.NO.459/1999 DISMISSED 18/01/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------------------- SA No.459 of 1999-D ------------------------------------- Dated this the 18th day of January 2011 Judgment The defendant, who suffered concurrent findings at the hands of the courts below, is the appellant. 2. The suit was one for declaration and injunction. The plaintiff is the Manager of a school. The plaint schedule property was acquired by him under Ext.A1 deed of the year 1943. The defendant owns property on the western side of the plaint schedule property, which he acquired under Ext.A2 deed dated 02.01.1992. In order to have access to plaint A schedule property, he has to make use of the pathway on the western side, which ends at the Panchayat Road on further west. According to the plaintiff, the width of the road is 10 to 12 ft. Since the defendant tried to obstruct the use of the said pathway, the suit was laid. SA 459/99 2 3. The defendant resisted the suit, pointing out that the way claimed by the plaintiff has only a width of 3 ft. and the claim of the plaintiff is without basis and cannot be countenanced. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined DWs 1 and 2. Exts.C1 and C2 are the commissioner's report and plan. 5. On an evaluation of the evidence, the trial court came to the conclusion that the plaintiff is entitled to the pathway, which is shown as plant B schedule way which, according to the trial court, had a width of 10 ft., by way of easement of necessity as well as prescription. 6. The defendant carried the matter in appeal as AS No.131/95 before the District Court, Thrissur. The lower appellate court rightly held that the claim of easement by necessity is not sustainable. It then went on to consider SA 459/99 3 the question whether the plaintiff had succeeded in establishing the plea of prescriptive right of easement and found in favour of the plaintiff in the suit and the appeal was dismissed. Hence the second appeal. 7. Notice was issued on the following substantial questions of law : “1. Whether the courts below are justified in holding the right of easement by prescription without the aid of primary evidence to sustain the claim of existence of a road for 50 years ? 2. Whether the appellate court is justified to hold that B schedule is a motorable road on the strength that the Headmaster of the school was having a car, when there is no evidence of any vehicle being taken to school through the disputed route ? 3. Whether the court below is justified in dismissing the commission application of the defendant and receiving the report of the ex SA 459/99 4 parte commission which was objected to by the defendant ? 4. Whether the court below was justified to rely on the commissioner's report which was issued ex parte and the inspection was conducted without notice to the defendant?” 8. The learned counsel for the appellant pointed out that on further west of his property, there are properties owned by others, through which according to the plaintiff, the pathway runs. The owners of those properties have not been made parties to the suit and therefore, the suit is not maintainable. The learned counsel emphasised that the suit is one for declaration also in respect of a pathway and therefore, all the owners of the properties through which the pathway runs, will have to be made parties to the suit. It is also pointed out by the learned counsel that the present pathway cuts his property into two portions, making the southern portion almost useless, which affects his rights. There was a suggestion by him SA 459/99 5 that he is willing to provide a pathway of 12 ft. which, after entering his property on the western boundary, would take a turn towards south and at the southern boundary end, turns towards east, ending on the western boundary of the plaintiff's property. That according to the defendant, will enable him to have a compact plot. 9. Both the courts below have concurrently found that there exists a pathway of 10-12 ft. The defendant purchased the property in 1992, whereas the plaintiff had acquired the property in 1943. The evidence on record shows that eversince then, the pathway has been in existence. It has come out in evidence that the students/teachers had been using the said pathway for coming to the school. When the defendant was examined as DW1, he has conceded that a retired Headmaster of the school had a motor car, which, he used to come to the school through the pathway in question. In the above circumstances, it is not possible to interfere with the findings of the courts below. However, the alternate SA 459/99 6 suggestion put forward by the defendant needs to be considered. As things now stand, B schedule way found by the commissioner and in respect of which a decree has been granted, cuts the property of the defendant into two, making the southern portion of the property almost useless. The suggestion now made by the defendant is worth considering. Of course, it is also to be ascertained whether it will cause any inconvenience or difficulty to the dominant owner. 10. For the above limited purpose, it is felt that an enquiry in this regard is required so as to protect the interests of both parties. Therefore, while confirming the right of the plaintiff to use the pathway of having a width of 10-12 ft, running through the property of the defendant as found by the courts below, the matter is remanded to the trial court to ascertain whether, on consent, it is possible to provide a 12 ft. way as suggested by the defendant before this court, in continuation of the pathway entering on the western boundary of his property running towards the SA 459/99 7 southern side and then turning towards east ending on the western boundary of the plaintiff's property. This may provide some solace to the defendant so that he can enjoy his property and he can have a compact plot. For this purpose alone, the matter is remanded to the trial court. If the suggestion does not materialise, the decree as challenged will stand. The parties will appear before the trial court on 25.02.2011. The office will forward the records to the trial court forthwith. There will be no order as to costs. P.Bhavadasan, Judge sta SA 459/99 8