IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 RSA.No. 326 of 2010() -------------------------------- AS.160/2009 of ADDL. DISTRICT COURT, N. PARAVUR OS.206/2001 of MUNSIFF COURT, N. PARAVUR .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- POLACHAN, S/O.JOSEPH, PUTHUVA, KUNNUKARA VILLAGE, VAYAL KARA, N.PARUR, ERNAKULAM DISTRICT. BY ADV. SRI.N.SUBRAMANIAM, SRI.M.S.NARAYANAN. RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------------------ K.N. DIVAKARAN NAIR, NEPHEW OF NEELAKANTA PILLAI, `PAVIZHA VEEDU', WARD NO.1, KUNNUKARA VILLAGE, VAYAL KARA, N.PARUR, ERNAKULAM DISTRICT. BY ADV. SRI.P.B.KRISHNAN, SRI.R.SURAJ KUMAR, SMT.GEETHA P.MENON, SRI.P.M.NEELAKANDAN. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.No. 326 of 2010 ORDER ON I.A. NO.816/2010 IN R.S.A. NO.326/2010 DISMISSED 04/06/2010. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 326 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of June, 2010. JUDGMENT Undaunted by the concurrent findings against them, the defendant in O.S. 205 of 2001 before the Munsiff's Court, North Paravur has come up in appeal. 2. The suit related to a pathway shown as plaint B schedule. The plaintiff claimed that he had obtained plaint B schedule property by paying a sum of Rs.2,025/- to the father of the defendant while the defendant was a minor. According to the plaintiff, when the defendant became major, the plaintiff requested him to execute a deed in his favour with respect to plaint B schedule pathway. The defendant was reluctant to do so. Apart from the fact that he did not execute the deed, he began to obstruct the use of the pathway by the RSA.326/2010. 2 plaintiff. On the allegation that the defendant is trying to reduce the pathway into his possession, the suit was laid. 3. The defendant resisted the suit. It was pointed out that description of the plaint B schedule property is incorrect. It is also pointed out that in the agreement referred to, the plaintiff had made some interpolations and therefore it is not binding on him. Further, it was stated that the so-called agreement relied on by the plaintiff was entered into due to the coercion and undue influence and therefore the plaintiff is not entitled to any relief on the basis of such an agreement. In addition, the defendants preferred a counter claim seeking to restrain the plaintiff from using plaint B schedule property as a pathway. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant had D.Ws. 1 to 3 examined and Exts. B1 and B2 marked. Exts. C1 and C1(a) are the commission report and sketch. On an evaluation of RSA.326/2010. 3 the evidence, the trial court came to the conclusion that the claim of the plaintiff is true and the suit was decreed in part. The counter claim was dismissed. Aggrieved, the defendant carried the matter in appeal as A.S.160 of 2009 before the District Court, North Paravur. The appellate court on an independent evaluation of the evidence in the case found that the findings of the trial court are fully justified going by the evidence on record. Accordingly, the appeal was dismissed. It is the said judgment and decree that are assailed in this appeal. 5. According to the learned counsel appearing for the appellant, there was no authority for the plaintiff to alter the pathway even assuming that he had a right to use the same. It is contended that the agreement with regard to plaint B schedule pathway was entered into at the behest of the police and it was under threat and coercion that the agreement was executed. 6. Both the courts below have found the above claims to be untrue. As already noticed, the dispute centers RSA.326/2010. 4 round plaint B schedule pathway. The plaintiff obtained his property as per Ext.A2 partition deed. It is not in dispute that originally plaint B schedule pathway belonged to the defendant. It was on the southern side of plaint A schedule property. The plaintiff had claimed that he had paid Rs.2,025/- to the father of the defendant and had purchased the way for his use. He says that at that time the defendant was a minor and when he attained majority he sought for execution of a proper deed. Even though the defendant raised doubts regarding legality of the transaction, it was found by both the courts below that the plaint B schedule property was demarcated and shown separately by the parties themselves. It was after the compromise talk that Ext.A1 agreement was entered into. Both the courts have concurrently found that the contentions based on coercion, misrepresentation, alteration etc. are without any basis and foundation. On the basis of the records, the courts below came to the conclusion that the plaintiff has a right to use plaint B schedule pathway and the defendant cannot RSA.326/2010. 5 obstruct him from doing so. Ext.C1 commission report also shows the existence of the way as claimed by the plaintiff. Both the courts have considered the evidence in considerable detail and had come to the identical conclusion. Being essentially a question of fact, no question of law, much less any substantial question of law, arises for consideration in this Second Appeal. This appeal is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.