IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 RSA.No. 218 of 2009 --------------------------------- AS.164/2003 of DISTRICT COURT, PATHANAMTHITTA OS.338/2002 of MUNSIFF COURT, RANNI .................... APPELLANT/APPELLANT/PLAINTIFF: MUHAMMED HANEEFA, AGED 52 YEARS, PALLITHADATHIL, KOTTANGAL MURI, KOTTANGAL VILLAGE, MALLAPPALLY TALUK. BY ADV. SRI.ESM.KABEER RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. JOSEPH VARGHESE, S/O.E.V.THOMAS, ELANJIPURATH VEEDU, KOTTANGAL MURI, KOTTANGAL VILLAGE. 2. ELIYAMMA JOSEPH, ELANJIPURATH VEEDU, KOTTANGAL MURI, KOTTANGAL VILLAGE. 3. VARGHESE VARGHESE, ELANJIPURATH VEEDU, KOTTANGAL MURI, KOTTANGAL VILLAGE. ADV. SRI.V.SANTHARAM FOR R1-2 SRI.ANTO THOMAS FOR R1-2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.218 of 2009 -------------------------- JUDGMENT This appeal is filed by the plaintiff, who lost his case concurrently in both the courts below. He originally instituted O.S.No.48/00 before the Munsiff's Court, Thiruvalla for a decree of permanent prohibitory injunction restraining the defendants from interfering with his use of plaint Item No.2 property as a pathway. The suit was later transferred to the Munsiff's Court, Ranni, where, it was re-numbered as O.S.No.338/02. 2. The appellant/plaintiff alleged that plaint Item No.1 property belongs to him under Exhibit A1 sale deed and he is in residential occupation thereof; that the property of the second defendant lies on the south of plaint Item No.1; that the property of the first defendant lies on the south of the property of the second defendant; that Pallippadi-Muzhayamattom Panchayat Road lies on the RSA 218/09 2 south of the first defendant's property; that there is a road which starts from the Panchayat Road and proceeds to north through the properties of defendants 1 and 2 and enters into plaint Item No.1 property; that the said road proceeds through the property of the third defendant; that the said road is having a width of ten feet and is described as plaint Item No.2; that he has spent money for formation of plaint Item No.2 road; that it was so being constructed under Exhibit A3 agreement entered into between himself and defendants on 17.7.1999; that himself and defendants have no right to obstruct the use of plaint Item No.2 road; that it is the only way for vehicular traffic to plaint Item No.1 property; that for the last few years defendants are trying to reduce the width of the said road and obstruct the ingress and egress of vehicles through the said road; that the defendants are trying to close the said road, to which, they have no manner of right and that RSA 218/09 3 therefore, the defendants are to be restrained from obstructing or closing the said plaint Item No.2 road by a decree of permanent prohibitory injunction. 3. The third defendant remained absent and ex parte. Defendants 1 and 2 resisted the suit by filing a joint written statement contending that the suit is not maintainable; that there is no plaint Item No.2 road as described; that it is a private road which starts from Pallippadi- Muzhayamattam Panchayat Road and ends in the courtyard of the second defendant's house; that the first defendant purchased five cents of property in 1989 and constructed the said road and installed a gate as well; that his family name is written on the gate; that the private road goes through the five cents of first defendant's property and ends at the courtyard of the second defendant's property; that the said road was so constructed by defendants 1 and 2 spending money and the plaintiff RSA 218/09 4 was permitted to use that road for carrying building materials by lorries for construction of the house in plaint Item No.1 property; that after the construction of the house in plaint Item No.1 property, the boundary between plaint Item No.1 property and properties of defendants 1 and 2 was closed by constructing Iruva kayyala; that defendants 1 and 2 have no knowledge about the alleged agreement purported to have been entered into between the plaintiff and defendants; that the said document is a forged one and it does not affect the rights of defendants 1 and 2; that the plaintiff and his predecessors were using a pathway which starts from Chunkappara-Marankulam PWD Road in Bethany Convent portion, which runs through the first defendant's property and enters into plaint Item No.1 property; that the said pathway is used for the last eighty years; that the present suit has been filed by the plaintiff in collusion with the third defendant, who is in inimical terms with RSA 218/09 5 defendants 1 and 2; that the plaintiff has no right over plaint Item No.2 road and that therefore, the suit ought to have been filed only for a declaration of right over plaint Item No.2 road and the suit filed for injunction alone has to be dismissed with costs. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 to 5 and DWs 1 to 3 and documentary evidence Exhibits A1 to A3, B1 to B8 and Exhibits C1 to C3, dismissed the suit. The aggrieved plaintiff took up the matter before the first appellate court filing A.S.No.164/03 and the District Judge, vide judgment dated 27.1.2009, dismissed the appeal concurring with the findings of the trial court and hence this Regular Second Appeal by the appellant/plaintiff against the concurrent verdicts of the courts below. RSA 218/09 6 5. It is vehemently contended before me by the learned counsel for the appellant/plaintiff that plaint Item No.2 is a road developed by the appellant/plaintiff investing funds so as to widen it to enable lorries being taken into plaint Item No.1 property pursuant to execution of Exhibit A3 agreement for use of the said property in common for the benefit of the parties to the suit and that the attempt of defendants 1 and 2 is to close the pathway and appropriate it for themselves, though on the basis of Exhibit A3 agreement, the plaintiff had invested huge funds for the development of the said road and that the concurrent findings of the courts below that the appellant/plaintiff is not entitled to a decree of permanent prohibitory injunction is not tenable and deserves to be reversed. 6. It is worthy to note that the appellant/ plaintiff's case is not one of easement by necessity or easement by prescription. According to RSA 218/09 7 him, his right to use plaint Item No.2 road arises out of Exhibit A3 agreement allegedly entered into by him with defendants 1 to 3. Contesting defendants 1 and 2 vehemently denied the documents, as according to them they are brought into existence fraudulently in connivance with the third defendant and is not one to which defendants 1 and 2 are parties. Exhibit A3 is an agreement apparently entered into by defendants 1 to 3 on 17.7.1999. In proof of the said agreement, plaintiff and the third defendant have tendered evidence respectively as PW1 and PW5 and the first attestor was examined as PW2. PW3 Kochukunju was examined, being the scribe to Exhibit A3. DW1 is the first defendant and he is the son of the second defendant. He has given evidence denying execution of Exhibit A3 agreement by himself and his mother. The burden to prove execution of Exhibit A3 by defendants 1 and 2 is on the appellant/plaintiff, who relies on Exhibit A3 agreement to establish his RSA 218/09 8 right. Appellant/plaintiff, as PW1, has deposed that there is no reason for non examination of attestors 1 and 3 to Exhibit A3 agreement. 7. The trial court, after considering the evidence of PWs 1 and 5, who are respectively the plaintiff and the third defendant, as also the evidence of PW2, the attestor, PW3, the scribe and the testimony of the first defendant as DW1, has come to the conclusion that Exhibit A3 agreement is not one executed by defendants 1 and 2, though it purports to be one executed by them as well. Apart from examining PW2, the attestor and PW3, the scribe, the appellant/plaintiff has not resorted to get the alleged signatures of defendants 1 and 2 appearing in Exhibit A3 agreement examined by an expert. It was, therefore, on the available evidence, that the courts below found that there is no sufficient proof of execution of Exhibit A3 agreement by contesting defendants 1 and 2. It is not in dispute that on the case alleged, the RSA 218/09 9 appellant/plaintiff has to succeed or fail in the suit on the acceptability of Exhibit A3 agreement, as he is not having any case that he is having easement by necessity or easement by prescription or by way of grant other than by Exhibit A3 agreement. The first appellate court also concurred with the findings of the trial court as regards lack of proof of execution of Exhibit A3 agreement by defendants 1 and 2, considering the inconsistent evidence tendered by PWs 1 to 3 and 5 set against the denial of execution by the first defendant, who tendered evidence as DW1. Counsel for the appellant/plaintiff has not been able to establish that there exists any substantial question of law for consideration by this Court in this Regular Second Appeal and the questions of law formulated in the appeal memorandum are not substantial questions of law. 8. Finally, counsel for the appellant/ plaintiff made a request for remand of the case. RSA 218/09 10 Having considered the entire aspects of the case, I am not of the view that the suit instituted as early as in 2000, by presenting the plaint before the Munsiff's Court, Thiruvalla, requires to be remanded affording further opportunity to the appellant/plaintiff to fill up the lacunas in evidence, as he had sufficient opportunity to adduce evidence and whatever evidence he wanted was also adduced before the trial court. Thus, there is no merit in this Regular Second Appeal. In the result, refusing admission, I dismiss this Regular Second Appeal in limine. 24th February, 2009 (K.P.Balachandran, Judge) tkv