IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 RSA.No. 904 of 2008() --------------------- AS.31/2001 of II ADDL. DISTRICT COURT, KOLLAM OS.220/1997 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------- K. NARAYANA PILLAI, AGED 58 YEARS, EX-SERVICEMAN, VRINDAVAN VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY VILLAGE, FROM KOCHU VEEDU, PULIYOOR VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.BIJU M.JOHN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: -------------------------- 1. GOPI, AGED ABOUT 45 YEARS, S/O. KESAVAN, KISHORE BHAVAN, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY. 2. PRABHAKARAN, ALSO NAMED BABY, AGED ABOUT 50 YEARS, CHIRAKKARA VEEDU, PADANAYARKULANGARA NORTH MURI, KARUNAGAPPALLY. SRI.B.KRISHNAMAN, CAVEATOR FOR R2 SMT.SIBHA.S THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.904 OF 2008 (G) ----------------------------------- Dated this the 17th day of January, 2011 J U D G M E N T Plaintiff is the appellant. Concurrent decision rendered by two courts below, by which, the suit filed by the plaintiff for declaration of prescriptive easement over a way and also mandatory injunction was turned down, is challenged in this appeal. 2. The case of the plaintiff in short was that through the properties of the defendants and another, namely, one Thampi, he is enjoying a way for ingress and egress to his suit property described as 'A' schedule as a right of easement for the last more than 50 years, and by which he has obtained right of prescriptive easement over such way, which was described as 'D' schedule. Properties of the 1st and 2nd defendants through which the way passed through were described as 'B' and 'C' schedules. Alleging R.S.A.No.904/2008 2 obstructions to the pathway by putting up a compound wall, the plaintiff also sought for a decree of mandatory injunction against the defendants for removing such obstruction. The defendants resisting the suit claim contended that the properties through which the plaintiff claimed a pathway were previously paddy fields, but later, filled up by them. Previously, separating the paddy fields, ridges had been in existence, in which after filling up, now, coconut trees have been planted. The plaintiff and his predecessors in interest had not used any portion of their property for a pathway, was the case of the defendants disputing the claim raised by the plaintiff as to having a right to easement by prescription over the pathway described as 'D' schedule as running through their property and another. On the materials placed, the trial court found that the plaintiff is not entitled to the reliefs canvassed in his suit, and he was non-suited. In the appeal preferred by the plaintiff, after a re-appraisal of the materials tendered in the case, the lower appellate court concurring with the findings entered by the trial court, found no interference with the dismissal of the suit was called for, and R.S.A.No.904/2008 3 accordingly, that appeal was dismissed. Feeling aggrieved, the plaintiff has preferred this second appeal. 3. I heard the learned counsel for the plaintiff. Perusing the judgments rendered by both the courts below, it is seen, the plaintiff has not taken even any step to identify and determine 'D' schedule pathway, which was described in his plaint. Immediately after the institution of the suit, a commission was taken out, and the commissioner filed a report and mahazer. Despite the defendants resisting the suit claim canvassed by the plaintiff as to his having a right of prescriptive easement over a pathway even disputing the identity of such pathway, no step was taken by the plaintiff to locate and identity the pathway, which was alleged to be running through the properties of the defendants. Description of plaint 'D' schedule also does not give any indication sufficient enough to determine the pathway stated thereunder. When such be the case, without going into the merits on the findings entered by the courts below that the plaintiff is not entitled to the reliefs canvassed in the suit, it goes R.S.A.No.904/2008 4 without saying that the relief of declaration of right of easement over a pathway, which was not identified, was not available to the plaintiff. The dismissal of the suit, in such circumstances, does not suffer from any infirmity whatsoever. Appeal is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.No.904/2008 5