IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 RSA.No. 418 of 2010() --------------------- AS.267/2007 of ADDL.DISTRICT COURT, KOTTAYAM OS.183/2002 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------------------------- 1. ELSAMMA VARKEY, W/O.VARKEY JOSEPH MANNANCHERIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM. 2. VARKEY JOSEPH, S/O.JOSEPH, MANNAMCHERIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM. 3. MOLLY MATHEW, W/O.MATHEW, MANNANCHERIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM. 4. P.J. DEVASIA, PALAKUNNEL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM. BY ADV. SRI.SABU GEORGE RESPONDENT/RESPONDENT/PLAINTIFF ----------------------------------------------------------- JOY , AGED 49, S/O. DEVASIA, KANDANAMKUZHIYIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/05/2010, THE C OURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.BHAVADASAN, J. ------------------------------------- RSA No.418 of 2010 ------------------------------------- Dated 28th May 2010 Judgment The defendants in OS No.183/02 before the Munsiff's Court, Ettumanoor, are the appellants. The parties and exhibits are hereinafter referred to, as they are available before the Trial Court. 2. The plaint schedule property, which has an extent of 44 cents was acquired by the plaintiff as per Ext.A1 gift deed dated 20.01.1998. According to the plaintiff, the properties of defendants 1 to 3 are situated on the western side of the plaint schedule property. It is averred in the plaint that the plaint schedule property has well laid boundaries on all the four sides. Ottakkappilumavu-Aikkara Kunnel Road situates on the eastern side of eastern properties. There is a pathway having a width of 3 feet, starting from the said road and passing in between the properties of Chacko and Kurian RSA 418/10 2 towards the west and it reaches the plaint schedule property. The plaintiff and the said Chacko and Kurian are using the said pathway as access to the eastern road. 3. Nalpathimala-Vattamala junction road passes through the northern side of the property of the defendants. There is a pathway having a width of 3 feet starting from the said road towards south and the same pathway is being used by the defendants as access to the northern road for several years. The defendants have never used the earlier said pathway. Apprehending that the defendants will try to cut open a way through his property, the suit was laid. 4. The defendants resisted the suit and a joint written statement was filed by them. Apart from defending the suit, they preferred a counter claim also. 5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimonies of PWs 1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants examined DWs 1 to 3. The Commissioner's report and plan were marked as RSA 418/10 3 Exts.C1 and C1(a) respectively. 6. The Trial Court, on an elaborate consideration of the evidence on record, came to the conclusion that the counter claim made by the defendants was not established and that there are well laid boundaries on all the four sides of the plaint schedule property. In fact, the Trial Court found that the plaint schedule property lies within well defined boundaries and no pathway passes through the southern side of the plaint schedule property as contended by the defendants. Accordingly, the counter claim made by the defendants was dismissed and a decree was granted in favour of the plaintiff. 7. The defendants carried the matter in appeal as AS No.267/07 before the Additional District Court, Kottayam. 8. The lower Appellate Court independently considered the evidence on record and found that the defendants in their counter claim had raised the right of easement by prescription. Going by the counter claim, the RSA 418/10 4 pathway claimed, runs through the property owned by the plaintiff. The lower Appellate Court. On a reading of the Commissioner's report, it was found that the counter claim laid by the defendants is without any bona fides. According to the defendants, the pathway over which they laid claim, had been in existence for over 50 years and it runs along the southern boundary of the plaint schedule property. However, the Commissioner's report showed that the plaint schedule property has well laid boundaries on all sides, especially on the western side, by a kayyala. The learned counsel for the appellants pointed out that the Commissioner has noticed a temporary pathway on the southern boundary of the plaint schedule property and that is sufficient to show that their claim is true. 9. I am afraid, I cannot accede to the said contention. The road is on the western side of the property and it is from that road, that the defendants claim that a pathway continues to run through the property of the plaintiff. If that be so, there has to be an entry on the RSA 418/10 5 western boundary of the plaint schedule property. Unfortunately for the defendants, the Commissioner's report belies that claim. There is no possibility for any opening having ever existed on the western boundary of the suit property. Going by the Commissioner's report, there is no finding that the kayyala is a temporary structure or has been tampered by the plaintiff. The claim made by the defendants that a kayyala was not there, was denied. According to the Commissioner, the kayyala looks very old. It was this fact, which persuaded both the courts to come to the conclusion that the counter claim was unsustainable. 10. Accordingly, no grounds are made out to interfere with the findings of the Courts below. This Appeal is without any merits and it is dismissed in limine. P.BHAVADASAN, JUDGE sta RSA 418/10 6 RSA 418/10 7