IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 SA.No. 504 of 1999(B) -------------------------------- AS.18/1997 of SUB COURT,THODUPUZHA OS.262/1995 of MUNSIFF COURT,THODUPUZHA .................... APPELLANT(S): RESPONDENT/ PLAINTIFF ------------------------------------------------------------- VARGHESE, S/O. MATHAI, 44 YEARS, MANNARATH HOUSE, MEENMUTTY KARA KARIKODE VILLAGE THODUPUZHA TALUK. BY ADV. SRI.A.J.JOSE RESPONDENT(S): APPELLANT/DEFENDANT --------------------------------------------------------------- MATHAI, S/O. CHANDY, 75 YEARS, THARAPPEL HOUSE, MEENMUTTY KARA KARIKODE VILLAGE, THODUPUZHA TALUK. ADV. SRI.MATHEW JOHN (K) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.504 of 1999-B ------------------------------------- Dated this the 25th day of February 2011 Judgment The disappointed plaintiff in OS No.262/95 before the Munsiff's Court, Thodupuzha, who was non- suited by the lower appellate court, is the appellant before this court. The short facts necessary for the disposal of the case are the following : 2. The plaintiff is the owner in possession of plaint A schedule property. The defendant owns property on the eastern side of his property. The claim is that there is pathway running through the property of the defendant, which ultimately leads to the property of the plaintiff that is shown as plaint C schedule. The plaintiff set up a claim of easement right over plaint B schedule pathway. Alleging that the defendant is trying to obstruct the use of the pathway by the plaintiff, the suit was laid. 3. The defendant resisted the suit. According to SA 504/99 2 him, the pathway is only an imagination of the plaintiff and there is no such pathway. It is pointed out that the plaintiff has got a motorable road available to him for access to the outside world. It was also pointed out that in fact, he had to institute a suit against some of the inhabitants of the eastern side of the property who claimed a right of way through his property. In that suit, he was successful and the court has found that there is no pathway running through his property. Pointing out that the plaintiff had no manner of right to claim a way through his property, he 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 to 4 and document marked as Ext.A1 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Exts.B1 to B4 marked. Exts.C1 and C1(a) commissioner's report and sketch were also marked. 5. It appears that the trial court was greatly impressed by the commissioner's report and the evidence SA 504/99 3 of the plaintiff and readily granted a decree. The defendant took up the matter in appeal as AS No.18/97 before the Sub Court, Thodupuzha. 6. The lower appellate court re-evaluated the evidence on record and came to the conclusion that the trial court had erred in its conclusions and there has been mis-appreciation of evidence available in the case. The lower appellate court was of the view that there are clinching items of evidence to show that there was no pathway in existence as alleged and the trial court was in error in holding to the contrary. The appeal was accordingly allowed and the suit was dismissed. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : a)Has not the court below failed to exercise its jurisdiction when it failed to appreciate the question of easementary right by prescription put forth by the plaintiff by allowing erroneous consideration of the existence of another way SA 504/99 4 to mislead its judgment ? b)Has not the court below failed to exercise its jurisdiction when it went on appreciating B series documents wherein the plaintiff is not a party ? c)Is not easement of prescription the right establishing un- interrupted enjoyment of that right. Such a right cannot be decided by an appellate court evasively ? 8. The learned counsel for the appellant placed heavy reliance on the commissioner's report in this case and contended that the lower appellate court was in error in not accepting the same and holding contrary to the findings of the trial court. It is pointed out that the commissioner's report shows that there is a well laid pathway starting from the western boundary of the defendant's property which opens into the pathway running through the property of the defendant and leading to the plaintiff's property which situates further west of the defendant's property. The commissioner's report shows that there was a way as alleged by the plaintiff. The reasonings given by the lower SA 504/99 5 appellate court, according to the learned counsel, are not tenable either on facts or in law. Accordingly, it is contended that the judgment and decree of the lower appellate court are clearly unsustainable in law. 9. The learned counsel for the respondent, on the other hand, submitted that the lower appellate court has meticulously analysed the evidence and has found that the claim of the plaintiff is untrue. The learned counsel drew attention of this court to Ext.B3, which is the commissioner's report in a suit instituted by him against the inhabitants on the eastern side of the property who claimed a right of way through his property. In the said suit, his property was shown as A schedule property. A commission was taken in the said suit and Ext.B3 report was filed wherein the commissioner has specifically stated that there are no indications or signs of any pathway or use of anybody of any portion of plaint A schedule property in that suit, as a pathway. Eight months thereafter, the present suit is instituted and the commissioner suddenly finds existence SA 504/99 6 of a pathway. According to him, a portion of the boundary is seen demolished and that part is to be treated as an opening for the pathway by the trial court. At any rate, the learned counsel pointed out that a motorable road is available to the plaintiff and there is no justification for the plaintiff in laying claim over the property of the defendant for a pathway. 10. It must be stated that there is considerable force in the submission made by the learned counsel for the respondent. It is true that in the commissioner's report and plan, the commissioner does show that there is a pathway leading from the western boundary of the defendant's property through the property of the plaintiff on the western side and it runs through the defendant's property also. But, as rightly noticed by the lower appellate court, the opening of the pathway seems to be newly created as further north of the opening now seen by the commissioner, where there are stepping stones. SA 504/99 7 11. As pointed out by the learned counsel for the respondent, Ext.B3 cannot easily be ignored. That, as already noticed, is a report of the commissioner in a suit instituted by the defendant, in which his property was shown as plaint A schedule property, which is shown as B schedule in the present suit. In the said report, the commissioner has stated that there are no signs of any pathway in A schedule property in that suit. The commissioner was examined as DW2 and he affirms the same at the time of his deposition. 12. On a reading of the evidence adduced by the plaintiff, it would appear that probably, there might have been a pathway as mentioned in the plaint. But, there is absolute want of evidence to show that there is a way as alleged in the plaint. Of course, the commissioner has reported that the age of the stepping stone etc. is more than 25 years. It would appear that the defendant had purchased a narrow strip of land so as to have a motorable way to the property owned by his son on the northern side SA 504/99 8 of his property. Even assuming that the plaintiff might have earlier walked through the property purchased by the defendant, unless he is able to establish a right to use the way, he cannot succeed. There is nothing to indicate that the findings of the lower appellate court are either perverse or unwarranted by the evidence on record. The lower appellate court has analysed the evidence meticulously and has come to the conclusion that the claim of the plaintiff cannot be true. Therefore, no interference is called for with the judgment and decree of the lower appellate court. No substantial questions of law 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 504/99 9 SA 504/99 10