IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 RSA.No. 702 of 2007() -------------------------------- AS.3/2002 of SUB COURT, THIRUVALLA OS.181/1996 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT/APPELLANT/5TH DEFENDANT IN OS: ---------------------------------------------------------------------- KUNJUNJU KUTTY, VARIPPALIL HOUSE, PALIAKKARA MURI, THIRUVALLA VILLAGE. BY ADV. SRI.A.C.DEVY RESPONDENT(S): RESPONDENTS.1 TO 6 IN AS. /PLAINTIFF & DEFEMTAMTS 1 TO 4 ------------------------ AND ADDL.6TH DEFENDANT IN OS. 1. KUNJANNA MARIYAMMA, NADUVILA PARAMBIL HOUSE, PALIYAKARA MURI, THIRUVALLA VILLAGE. 2. PANKAJASHIAMMA, VALLIYA MARATTU MUNJANATTU VADAKKEKALATHIL HOUSE, THUKALASSERY MURI, THIRUVALLA VILLAGE. 3. PARUKUTTYAMMA, VALLIYA MARATTU MANJANATTU VADAKKEKALATHIL HOUSE, THUKALASSERY MURI, THIRUVALLA VILLAGE. 4. SANTHAMMA, AGED 56 YEARS, -DO- -DO-. 5. THANKAMMA, AGED 54 YEARS, VALLIYA MARATTU MUNJANATTU VADAKKEKALATHIL HOUSE, THUKALASSERY MURI, THIRUVALLA VILLAGE. 6. PONNAMMA, W/O. P.C. CHERIYAN, AGED 44 YEARS, PUTHUPARAMPIL, PALIACKARA, THIRUVALLA. R1 BY ADVS. SRI.CHERIAN GEE VARGHESE, SRI.P.HARIDAS. R6 BY SRI.INNOCENT FRANCIS PAPPALLI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEAR ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------- R.S.A No. 702 of 2007 -------------------------- Dated this the 14th July, 2010 J U D G M E N T Aggrieved by the concurrent findings against him, the 5th defendant in O.S 181/96 has come up in appeal. The facts and parties hereinafter referred to as are available before the trial court. 2. The matter relates to the use of a pathway. Plaintiff claims to have obtained plaint item No.1 as per Ext.A1 sale deed dated 18.11.1975. According to the plaintiff, the assignors in the document itself had provided a pathway for the use of the plaintiff through their property. On the allegation that defendants were trying to cause obstruction and attempting to alter the existing pathway, the suit was laid. 3. Defendants resisted the suit. It is explained in the written statement that relying on certain assignments, since the purchaser is not in the party array, the suit is bad for non-joinder of parties. There was no way in existence as alleged by the plaintiff. 4. The trial court raised necessary issues for R.S.A No. 702 of 2007 2 consideration. The evidence consists of the testimony of PWs 1 to 3 and Exts.A1 to A3 marked from the side of the plaintiff. Defendants had examined DW1 and DW2 and had Exts.B1 and B2 were marked. Exts.C1 and C1 (a) are the commission report and plan. 5. The trial court on perusal of the document of title of the plaintiff as well as the commission report and plan came to the conclusion that there is a way in existence as alleged by the plaintiff and she had right to use the same. Accordingly the suit was decreed. 6. The matter was carried in appeal by the aggrieved defendant as A.S. 3/02 before the Sub Court, Thiruvalla. The appellate court on independent evaluation of the evidence came to the same conclusion as that of the trial court and dismissed the appeal . It is against those concurrent findings, the present appeal has been lodged. 7. Learned counsel appearing for the appellant pointed out that the courts below are certainly not justified in decreeing the suit. There is no such way as alleged in the plaint and plaintiff was trying to create a new pathway through his property. R.S.A No. 702 of 2007 3 8. Learned counsel appearing for the respondents pointed out that even as per the assignment deed executed by the defendant, a pathway is provided through their property,. 9. All that the plaintiff seeks is to use a way. Both the courts below have concurrently found the right to use the pathway by the plaintiff. In the light of clear statement in Ext.A1 document of title of the plaintiff executed by defendants, they cannot be heard to say that there was no pathway as mentioned in the document. On a reading of the appellate court judgment, it is seen that at the time of hearing the appeal there was a suggestion from the side of the plaintiff that a way may be given through the side of the property and she would not insist having a way through the middle of the property of the defendant. However, the defendant was very adamant that he will not allow the right to use the way as claimed by the plaintiff. Though there is stipulation in Ext.A1 permitting the plaintiff to use the path way, the suggestion was not accepted. Accordingly, the lower appellate court dismissed the appeal. R.S.A No. 702 of 2007 4 10. No grounds are made out to interfere with the judgment and decree of the courts below since it is not shown that findings of the lower appellate court are either perverse or unwarranted by the evidence on record. No substantial questions of law arose for consideration in this Appeal. . 11. However, it is suggested that since the execution petition is pending, the parties may be allowed to attempt to bring about a settlement. It will be certainly open to the parties if they wish to do so. Leaving open the liberty of the appellant to seek for a settlement, this appeal is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma R.S.A No. 702 of 2007 5 R.S.A No. 702 of 2007 6