IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 407 of 1998() ---------------------------- AS.45/1995 of II ADDL.SUB COURT,ERNAKULAM OS.998/1991 of I ADDL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT(S): (APPELLANTS IN THE LOWER APPELLATE COURT & PLAINTIFFS ----------------------- IN THE TRIAL COURT) 1. V.V.MARY, WIFE OF A.O.RAPHEAL, ALOOKARAN HOUSE, MARKET JUNCTION, TRIPUNITHURA. 2. A.O.RAPHEAL, S/O. LATE A.L.JOSEPH, ALOOKKARAN HOUSE, MARKET JUNCTION, TRIPUNITHURA. BY SRI.R.D.SHENOY, SENIOR ADVOCATE BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S): (RESPONDENT IN THE LOWER APPELLATE COURT AND ------------------------- DEFENDANT IN THE TRIAL COURT). JOY, S/O. V.C. THOMAS, GOLDEN BAKERY, STATUE JUNCTION, TRIPUNITHURA. ADV. SRI.VARGHESE C.KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.407 of 1998-F ------------------------------------- Dated this the 16th day of February 2011 Judgment The plaintiffs in OS No.998/91 before the Munsiff's Court, Ernakulam, are the appellants. 2. The suit related to reliefs In respect of plaint B schedule pathway shown in the commissioner's report. The plaintiffs claimed a right of easement by grant as well as well as by prescription to use the said pathway. They relied on Ext.A2 document in support of their claim. 3. The defendant resisted the suit. They disputed the rights claimed by the plaintiffs. It was also pointed out that the predecessor-in-interest of the defendant had filed a suit against the second plaintiff against the use of the pathway now claimed by the plaintiffs and had obtained a decree in his favour. It is further contended that the reliance placed on Ext.A2 by the plaintiffs is without any basis. The said document was SA 407/98 2 entered into between one Ananthakrishna Iyer and the second plaintiff. The agreement was in the nature of a licence and not an easement. Based on these contentions, the defendant prayed for dismissal of the suit. 4. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiffs. The defendant examined DWs 1 and 2 and had Exts.B1 to B2 (a) marked. Exts.C1 and C1(a) are the commissioner's report and rough sketch. 5. The trial court, on an evaluation of the evidence on record, came to the conclusion that the plaintiffs cannot take any aid of the recitals in Ext.A2 because the second plaintiff did not admittedly have any manner of right over plaint A schedule property and Ext.A2 did not confer any right on the first plaintiff at all, who was the actual owner of plaint A schedule property to use the pathway. Accordingly, the suit was dismissed. SA 407/98 3 6. The plaintiffs carried the matter in appeal as AS No.45/95 before the Sub Court, Ernakulam. The lower appellate court doubted the genuineness of Ext.A2 document and found that the servient owner is not on the party array and also that the reasonings given by the trial court to non-suit the plaintiffs are perfectly justified. On the basis of these findings, the appeal was dismissed. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : A)When the trial court judgment does not disclose that genuineness of Ext.A2, was not in issue before it, has not the appellate court exceeded its jurisdiction in entertaining the contention that Ext.A2 is not genuine ? B)Whether drawing an adverse inference on the basis that leading questions are put to by PW1 in chief examination is available or tenable in the facts and circumstances of the case ? C)Whether a suit for declaration of easement maintainable SA 407/98 4 against the servient owner only and whether servient owner is always a necessary party in a suit for declaration of the right of easement ? D)On a proper construction of Ext.A2, does not Ext.A2 disclose easement by grant and whether the conclusion of the courts below regarding the effect o Ext.A2 contrary to the principles based on which the issue of easement has to be decided. E)Whether the circumstance that the first appellant is not a party to Ext.A2 and that2nd appellant alone is a party thereto, affects the maintainability of the suit ? 8. The learned counsel for the appellants pointed out that both the courts below have erred in law and on facts in dismissing the suit. A perusal of Ext.C1 report will clearly show the existence of a pathway and the necessity for the plaintiffs to use the same to have access to the road on the southern side and so, the courts below ought to have decreed the suit. SA 407/98 5 9. Though the argument may look attractive, on a closer scrutiny, it can be seen that it is without any basis whatsoever. The appellant has placed reliance solely on Ext.A2 to claim a right to use B schedule pathway. Even assuming the argument of the learned counsel for the appellants that the genuineness of Ext.A2 was not in dispute, the question remained whether that can confer any right on the plaintiffs to use the pathway. A reading of Ext.A2 document on which reliance was placed by the plaintiffs would show that it confers right to use the pathway only to the second plaintiff and the first plaintiff has no manner of right to use the pathway. There is no dispute regarding the fact that plaint A schedule property was owned by the first plaintiff and Ext.A2 was entered into between the predecessor-in-interest of the second plaintiff for the use of the second plaintiff. Since the second plaintiff is not the owner of the plaint A schedule property and since there is no agreement allowing the owner of the plaint A schedule property to use the pathway, the courts SA 407/98 6 below were perfectly justified in dismissing the suit. By no stretch of imagination, Ext.A2 can be deemed to confer any manner of right over plaint B schedule pathway in favour of the first plaintiff. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 407/98 7