IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 RSA.No. 328 of 2009(E) ---------------------- AS.57/2001 of DISTRICT COURT,KOLLAM OS.274/1996 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/DEFENDANT: ----------------------------- SADIDHARAN, S/O. KUMARAN, KALYIL VEEDU, KANNIMEL, KILIKOLLOOR, KOLLAM. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT/ RESPONDENT/PLAINTIFF: ------------------------------------ HARIDAS, KALAYIL VEEDU, KANNIMEL, KILIKOLLOR, KOLLAM. ADV. SRI.V.V.RAJA FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No. 328 of 2009 --------------------------------------- Dated this 08th day of October 2009 JUDGMENT Respondent appears through counsel. 2. The dispute is concerning a path way described as D schedule in the plaint having width of 3 feet and length of 10 meters. Appellant and respondent are closely related. respondent/plaintiff claimed that he got title and possession of plaint A to C schedules lying contiguously, as per Exts.A2 to A4 and that in accordance with the recitals in Ext.A1, partition deed under which his vendors got title, disputed D schedule was provided along the eastern side of plaint A to C schedules north-south for the use of respondent and other sharers. Now, appellant who is owning the adjacent property is attempting to block the D schedule. Hence the suit for injunction. Appellant contended that the D schedule is for access to the E schedule in the plaint which admittedly belongs to and in his possession and situated on the east and north of plaint A to C schedules and the disputed path way. He denied that respondent has any right over the D schedule. Trial court found that respondent has right to use the D schedule and granted decree for prohibitory injunction. First appellate court has concurred with it. That concurrent finding is under challenge in the second appeal. It is contended by learned counsel for appellant that respondent has no right over the D schedule. Counsel for respondent R.S.A.No.328 of 2009 2 supported the concurrent finding entered by the courts below. 3. Ext.A1 is the partition deed on which the parties hereto base their ultimate title. In Ext.A1 at page 7, it is stated that along the east of the 4th schedule allotted to Sanku, father of respondent a way is provided in the north-south direction. No pathway has been provided on the eastern side as per settlement deed No.3666 of 1980 in favour of respondent in respect of plaint A schedule. In Ext.A2 at pages 4 and 5 there is reference to the way along the eastern side up to item No.1 to be used by all except allottees of 5th schedule. Allottees of 5th schedule are excluded from use of that way since property allotted to them abutted the road on the south. Advocate commissioner (PW3) has inspected the property and submitted Exts.C1 to C3 which is not objected by either side. Commissioner after inspection on 24-06-1996 has reported that A to C schedules lie contiguously in rectangular shape with compound wall on north, south and east. Commissioner has identified D schedule way as running along the eastern side of compound wall on the east of A to C schedule. That way starts from the north-eastern side of A to C schedules and extent up to panchayath road on the south. 4. Learned counsel for appellant has a contention that D schedule does not extent up to the northern extremity of plaint B schedule. This contention cannot be accepted in the light of the recital R.S.A.No.328 of 2009 3 in Ext.A2 which states that the way (D schedule) is provided for access to item No.1 also which was allotted to one Soman who as per Ext.A3 sale deed No.687 of 1981 assigned that item No.1 (plaint B schedule) to the respondent. Thus, evidence on record revealed that D schedule way was provided as per Exts.A1 and A2 which respondent as subsequent assignee is entitled to use. Appellant cannot cause obstruction to the use of plaint D schedule by the respondent. Courts below have considered the evidence and found accordingly. That finding rest on evidence on record and there is no circumstance pointed out requiring this court to admit the appeal. No substantial question of law is also involved on the facts and evidence of the case. Second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/