IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 RSA.No. 1354 of 2010 ----------------------------------- AS.102/2002 of SUB COURT, ATTINGAL OS.118/1998 of MUNSIFF COURT,VARKALA .................... APPELLANT/APPELLANT/PLAINTIFF: JANARDHANAN NAIR, S/O.KRISHNAPILLAI, AGED 51 YEARS, JAYASREE MANDIRAM, FROM ALIKADAVEEDU, VENKULAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.J.JAYAKUMAR SRI.S.JIJI RESPONDENT/RESPONDENT/DEFENDANT: CHELLAMMA, D/O.KUNCHU, AGED 77 YEARS, SREEKALA MANDIRAM, FROM KOCHU VEEDU, VILAKATHU VEEDU, VENKULAM DESOM, EDAVA VILLAGE, VARKALA, THIRUVANANTHAPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/03/2011 ALONG WITH RSA NO.257 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.Nos.1354 of 2010 & 257 of 2011 ----------------------------------------- COMMON JUDGMENT Plaintiff in O.S.No.118/1998, who is also the second defendant in O.S.No.115/1998 on the file of Munsiff Court, Varkala is the appellant. Appellant instituted O.S.No.118/1998 seeking a decree for injunction restraining the plaintiff in O.S. No.115/1998 from trespassing into the plaint schedule properties contending that she has no right of way through his property. O.S.No.115/1998 was instituted by the defendant in O.S.No.118/1998 seeking a decree for declaration of right of way through plaint E schedule way. Plaint A schedule property belongs to the plaintiff. Plaint B schedule property belongs to the first defendant. Plaint C schedule property belongs to the second defendant. Plaint D schedule property belongs to the third defendant. Plaint E schedule is the way which runs through the western portion of plaint B, C and D schedule properties from north to south and reaches plaint A schedule property. First defendant in O.S.No.115/1998 contended that a way was RSA 1354/10 & 257/11 2 provided under Exhibit A1 sale deed dated 20.11.1964 and her predecessor and subsequently, first respondent have been using that way as of right, as an easement, without any obstruction continuously for more than twenty years and she, thereby, acquired a right of way by easement of prescription. It is also contended that as a way is granted under Exhibit A1, she is also entitled to get a right of easement by grant. Along with other defendants, appellant resisted the suit contending that the way provided under Exhibit A1 does not pass through the properties of the appellant or the other defendants and therefore, she is not entitled to a decree for declaration of her right of way over plaint E schedule way. Both the suits were tried jointly. O.S.No. 115/1998 was treated as the main case. 2. Evidence consist of oral evidence of PWs 1 to 4, DWs 1 and 2 and CW1 and Exhibits A1 to A4, B1 to B6 and C1 to C2(a). Learned Munsiff, on the evidence, found that existence of plaint E schedule way as such was not disputed and it is proved by the evidence of CW1 and C1 to C2(a) reports and plans also. Learned Munsiff also found that it was under Exhibit A1, first respondent purchased plaint A schedule property which lies to the south and RSA 1354/10 & 257/11 3 the property of the third defendant lies immediately to its north and to its north is the property of the second defendant, the appellant and to its north is the property of the first defendant and plaint E schedule way runs from north to south through the western portion of plaint B, C and D schedule properties. Learned Munsiff found that under Exhibit A1, the assignor of the first respondent provided the way and since then, first respondent has been using that way without obstruction, as of right and as an easement. Learned Munsiff, therefore, granted a decree as prayed for in O.S.No.115/1998 and dismissed O.S.No. 118/1998. But, the declaration granted was to the effect that right of way is the right of easement by grant. Second defendant alone challenged the judgment in O.S.No.115/1998 before Sub Court, Attingal in A.S.No.103/2002. He also filed A.S.No. 102/2002 challenging the dismissal of O.S.No.118/1998. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed both the appeals, though learned Sub Judge found that right of way available is a right of way by easement of prescription. These appeals are filed challenging the common judgment. R.S.A.No.257/2011 is filed RSA 1354/10 & 257/11 4 challenging the judgment in O.S.No.115/1998, as confirmed in A.S.No.103/2002. R.S.A.No.1354/2010 is filed challenging the judgment in O.S.No.118/1998, as confirmed in A.S.No.102/2002. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that appellant claimed right of easement by grant and it is based on Exhibit A1. Exhibit A1 shows that assignor of the first respondent was granted a right of way as provided in Settlement Deed 2407/1957 and the assignor was not using that way and instead, was using the way which runs through the eastern side of the property allotted to Ummini Amma @ Karthyayani Amma under the settlement deed and therefore, the right which could be claimed under Exhibit A1 is only over the property allotted to the share of Ummini Amma @ Karthyayani Amma. It is, therefore, argued that courts below were not justified in granting a decree as sought for. 5. The fact that there exists a way through the western portion of plaint B, C and D schedule properties as demarcated by the Commissioner in Exhibit C2(a) plan is not disputed. Appellant and other defendants would claim that it is a private RSA 1354/10 & 257/11 5 way available to their property and not a way available to the first respondent or to plaint A schedule property. It is not disputed that said way, which runs from north to south through the western portion of the properties of the appellant and other defendants, reaches the northern boundary of plaint A schedule property, obtained by the first respondent under Exhibit A1. Exhibit A1 shows that assignor was provided a way under the settlement deed and though the assignor was having a right of way by easement of grant, that way was not being used and instead, another way as described in Exhibit A1 was being used. Under Exhibit A1, assignor granted a right to the first respondent to use that way. It is on that basis, in the plaint, first respondent contended that she has obtained a right of easement by grant was pleaded. The said way provided in Exhibit A1 is not through the property of the assignor, but through the property of another sharer, to whom the property was allotted under the same settlement deed, where under another way was provided to the property describing that, that way was not being used by the assignor. Therefore, on a proper reading of Exhibit A1, it is clear that the way provided to the assignee under Exhibit A1 is not a RSA 1354/10 & 257/11 6 way by easement of grant but only a right to use the way which was available to the assignor. 6. Courts below, on the evidence, found that apart from plaint E schedule way, there is no other way to plaint A schedule property. Though appellant and other defendants contended that the way provided to the assignor of Exhibit A1 is another way and the way described in Exhibit A1 is not plaint E schedule way but another way, no evidence was let in, in support of the said contention. In such circumstances, courts below found that it was plaint E schedule way which was being used by the assignor of the first respondent to reach plaint A schedule property and plaint a schedule property was assigned to the first respondent with the right to use that way. Evidence establishes that from the date of execution of Exhibit A1, first respondent has been using that way. Evidence also establish that she has been using that way as of right and as an easement without any obstruction continuously till the date of institution of the suit. Therefore, the finding of the courts below that first respondent established a right of way over plaint E schedule way is perfectly correct. Though learned Munsiff declared that it is a way by easement of RSA 1354/10 & 257/11 7 grant, in law, the right of way could only be a right of way by easement of prescription. As first respondent established all the ingredients of a right of easement by prescription as provided under Section 15 of Indian Easement Act, she is entitled to get right of way declared as has been done by the courts below. In such circumstances, I find no substantial question of law involved in the appeals. Appeals are dismissed. 22nd March, 2011 (M.Sasidharan Nambiar, Judge) tkv