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. 754 of 1997(F) ------------------------------ [AS.NO.12/1994 OF DISTRICT COURT,KOLLAM, OS.NO.502/1991 OF MUNSIFF MAGISTRATE COURT, PARAVOOR] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- KESAVAN GOPALAKRISHNAN VAIDYAN, CHARUVILA PUTHEN VEEDU, KAVADIKONAM, KOTTACKERAM, ELAMKULAM, PARIPPALLY. BY ADV. SRI.P.B.SURESH KUMAR. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. SASIDHARAN, PONGUVILA VEEDU, KULAMADA, KOTTACKERAM, ELAMKULAM, PARIPPALLY. 2. SIROMANI, PONGUVILA VEEDU, KULAMADA, KOTTACKERAM, ELAMKULAM, PARIPPALLY. 3. SIVAPRASAD, PONGUVILA VEEDU, KULAMADA, KOTTACKERAM, ELAMKULAM, PARIPPALLY. 4. INDIRA, PONGUVILA VEEDU, KULAMADA, KOTTACKERAM, ELAMKULAM, PARIPPALLY. 5. CHELLAPPAN, PONGUVILA VEEDU, KULAMADA, KOTTACKERAM, ELAMKULAM, PARIPPALLY. R1, R2, R4 & R5 BY ADV. SRI.G.UNNIKRISHNAN, R3 BY ADVS. SRI.RAM MOHAN.G, SRI.G.P.SHINOD, SRI.MANU V. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ---------------------------------------------- SA No.754 of 1997 ---------------------------------------------- Dated this the 10th day of January 2011 Judgment The plaintiff in OS No.1490/90 before the Munsiff's Court, Kollam, which was transferred to Munsiff's Court, Paravoor and re-numbered as OS No.502/91, is the appellant before this court. The suit was dismissed by the trial court, which was confirmed by the lower appellate court. 2. According to the plaintiff, he acquired 33 cents of land as per Exts.A1 to A3 patta and another 19 cents of land under A4 sale deed. The allegation was that the defendants, who were residing on the eastern side of the property owned by the plaintiff, were trying to cut open a pathway to reach the panchayat road on the western side of their properties. It is averred in the plaint that the property owned and possessed by the plaintiff lies as a compact plot within well defined boundaries. Apprehending SA 754/97 2 further mischiefs from the defendants, the suit was laid. 3. The suit was resisted by the defendants. According to them, on the western and northern sides of the plaint schedule property, there is a pathway which was provided as per Ext.B1 partition deed, having a width of 6 feet and it was being used by the sharers under Ext.B1 for having access to their properties. The defendants are successors-in-interest of those sharers. It is also pointed out that the plaintiff is also a successor-in-interest of one of the sharers under Ext.B1. Claiming easement right, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts.B1 to B6 marked. 5. The trial court, on an evaluation of the evidence, came to the conclusion that the plaintiff had not SA 754/97 3 come to the court with clean hands because he had concealed the fact that a pathway was provided under Ext.B1 document and had tried to get an injunction, restraining the defendants from using that pathway. 6. The trial court, on an evaluation of the evidence, found that there was a pathway provided under Ext.B1 document. It was also found that the parties are successors-in-interest of the sharers under the said document and they are bound by the recitals in Ext.B1. Accordingly, the suit was dismissed. 7. The plaintiff carried the matter in appeal as AS No.12/1994 before the District Court, Kollam. The lower appellate court, on an independent evaluation of the evidence, found the findings of the trial court to be justified and accordingly dismissed the appeal. Hence the second appeal. 8. Notice is seen ordered on the following questions of law raised in this second appeal : “(a) Are not the decisions of the courts below SA 754/97 4 perverse in so far as the same are decided on an incorrect assumption of facts ? (b) Is not the finding of the courts below that the defendants have acquired a right of easement over plaint property illegal ?” 9. The learned counsel for the appellant pointed out that the courts below have erred in appreciating the real issue involved in the case and that has resulted in miscarriage of justice. According to the learned counsel, only 19 cents obtained under Ext.A4 document can be traced to Ext.B1 and the defendants have no manner of right to claim a pathway through the 33 cents or property obtained by him under Ext.A1 to A3. At best, according to the learned counsel, the defendants could lay claim to have a pathway only through the 19 cents of property obtained by him under Ext.A4 and there is no way running through the balance 33 cents of property obtained by him under Exts.A1 to A3. This vital aspect has not been noticed by the courts below and therefore, the judgments and decree SA 754/97 5 of the courts below are unsustainable in law. 10. The learned counsel for the respondents pointed out that it is virtually impossible to identify the properties under Exts.A1 to A3 because the documents do not contain the boundaries of the properties obtained by the plaintiff. It was also pointed out that the plaintiff had conceded the fact that the property purchased by him under Ext.A4 was from one of the sharers under Ext.B1 and that a pathway having 6 feet of width, runs through his property. The claim of the plaintiff was that the defendants may be restrained from using the said pathway. No other case was put forward by the plaintiff and in fact, he conceded that Ext.B1 did provide a pathway, which runs through his property. According to him, no grounds are made out to interfere with the judgments and decree of the courts below. 11. The learned counsel for the respondents seems to be well founded in his submissions. The plaint schedule shows the entire property covered by Exts.A1 to SA 754/97 6 A4. On a perusal of Exts.A1 to A3, it is seen that the properties covered by those documents by which the plaintiff obtained the 33 cents of property do not contain the boundaries. It is not in dispute that the property acquired under Ext.A1 originally belonged to one of the sharers under Ext.B1. The defendants also are stated to be the successors-in- interest of the sharers under Ext.B1. Obviously, the parties are bound by the recitals in Ext.B1. Of course, the plaintiff was not a party to Ext.B1, but it is trite law that persons who come in possession of properties included in Ext.B1 subsequently, are also bound by the recitals in Ext.B1. 12. Coming to the contention regarding the 33 cents of land, which according to the plaintiff, was obtained by him independently by virtue of Exts.A1 to A3 and there was no pathway in the suit property, it was for the plaintiff to establish that fact. For reasons best known to the plaintiff, he did not choose to get the property identified to establish that there was no pathway through the 33 cents SA 754/97 7 of property obtained by him under Exts.A1 to A3. If that was his case, he should have necessarily got his property identified. Even at the appellate state, there was no such attempt from his part. 13. Apart from the above facts, it was pointed out by the learned counsel for the respondents that it may not be possible to identify the properties covered by Exts.A1 to A3. The learned counsel for the appellant, faced with the above situation, prayed for an opportunity enabling him to get the property identified and establish that there is no pathway as alleged by the defendants. 14. In the light of what has been stated above, it will be only a futile exercise and it will serve no purpose. At the risk of repetition, it may be noticed that it may not be possible to identify the properties covered by Exts.A1 to A3. Moreover, the plaintiff has shown the entire properties owned and possessed by him as the plaint schedule property. So, a remand of the matter will not come to the benefit of the appellant. Both the courts below have SA 754/97 8 appreciated the evidence in considerable detail and have come to the conclusion that the plaintiff is bound by the recitals in Exts.B1 and that the defendants are entitled to use the pathway made mention of in Ext.B1. It is essentially, a finding of fact. No substantial questions arise for consideration in this second appeal. The second appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 754/97 9