IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 RSA.No. 361 of 2009() --------------------- AS.138/2004 of DISTRICT COURT, PALAKKAD OS.150/2001 of MUNSIFF COURT, ALATHUR .................... APPELLANTS/APPELLANTS/DEFENDANTS NO. 1 AND 2 ----------------------------------------------------------------------- 1. RAMAKRISHNAN S/O. KUNJANDI, MANNATHUPURA STREET, KOPPAM AMSOM, PALAKKAD. 2. RAMAKRISHNAN @ THAYUMANI, GOVERNMENT EMPLOYEE, S/O. KUTTAPPAN, RESIDING AT MANNATHUPURA STREET, KOPPAM AMSOM, PALAKKAD. BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS: RESPONDENTS/PLAINTIFF AND DEFENDANT NO.3 ------------------------------------------------------- 1. RADHAMANI D/O. PUTHEN VEETTIL MEENAKSHIKUTTY AMMA, ARUN NIVAS, ACHAMTHODI, ERIYUR AMSOM DESOM, ALATHUR TALUK. 2. ERIMAYUR EZHUVA SAMUDAYAM (SNDP), ERIMAYUR AMSOM, DESOM, ALATHUR TALUK, REPRESENTED BY ITS PRESIDENT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 825 OF 2009 IN S.A. NO. 361 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 12.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.361 of 2009 ---------------------------------------- Dated this the 12th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 138/2004 on the file of the District Court Palakkad which arises from the decree and judgment in O.S. No. 150/2001 on the file of Munsiff's court, Alathur. The suit was filed for permanent prohibitory and mandatory injunction restraining the defendants from causing obstruction in the plaint B schedule property or preventing the plaintiff and her family members from using plaint B schedule property as way to plaint A schedule property. The trial court directed the defendants to remove the illegal construction i.e the granite basement and granite lamp and idol and also to remove the fence constructed on the southern side of the plaint B schedule property and to restore the plaint B schedule property as a pathway to its original position within two months. The trial court decreed the suit as prayed for and the same was confirmed in appeal by the lower appellate court. Hence this Second Appeal. Defendant Nos. 1 and 2 in the said suit are the appellants herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiffs claimed easement by prescription over plaint B schedule pathway. The absolute title and possession of the plaintiffs over the plaint A schedule property is not disputed . The case of the plaintiff is R.S.A. No.361 of 2009 -2- that plaint 'B' Schedule property originally belonged to Naduvil Veettil Thankappan Chettiyar's family and that the same has been used as a way to the plaint 'A' schedule property by the plaintiff and her members for the last 40 years openly without objection and without any interruption and that the plaintiffs acquired right of easement by prescription. According to the plaintiffs the defendants have no right to prevent the plaintiff and others from using the plaint B schedule property as a way to plaint A schedule property. 2. The defendants contended that neither the plaintiff nor her predecessors have any right or possession over the plaint B Schedule property and the same is not a cart- track connecting the plaint A schedule property with PWD road and that the plaint B schedule property is not fit for taking Bullock-cart or tractor to the plaint A schedule property. According to the defendants the allegations of the plaintiff are false. The plaintiff and others have no right of way over the plaint B schedule property nor acquired any right of easement by prescription. According to them there is another way to the plaint A schedule property and that is being used by the plaintiff and her family members as a passage to the plaint A schedule property and that now the plaint B schedule property is in the actual possession of SNDP. 3. In support of the case PW1 to PW3 were examined and Ext.A1 was marked on the side of the plaintiff .DW1 and DW2 were examined and Exts. B1 and B2 were marked on the side of the R.S.A. No.361 of 2009 -3- defendants. Exts. C1 to C5 were marked as court exhibits. 4. The plaint B schedule property is a strip of land measuring 6 x 1.5 feet koles. The Commissioner in Ext. C4 reported that the telephone wire and service wire of the electric connection were drawn through the plaint B schedule property to plaint A schedule property . The trial court after evaluating the evidence of PWs 1 to 3 and Exts. A1 and C1 to C5 , concluded that the plaintiff and her husband have got absolute title over plaint A schedule property and that the plaintiff has established right of easement by prescription over plaint B schedule property. The trial court also took into consideration the versions of PW1 and PW2 to the effect that the plaintiff and her predecessors in interest have been using the plaint B schedule property as a way for reaching the plaint A schedule property for more than 40 years. The trial court also observed that the oral evidence of DW1 supported the case of the plaintiff and that DW1 disproved the case of the defendants. Before the trial court DW1 categorically stated that the plaint B schedule property in Survey No. 19/6 was not included in Ext.B1 document produced by the defendants. Admittedly the plaint B schedule property is comprised in Survey No. 19/06 After appreciating the evidence on record the trial court concluded that the defendants have no manner of right or possession over the plaint B schedule property and restrained the defendants by way of permanent prohibitory injunction from causing obstruction in the plaint B schedule property or preventing the plaintiff and her family members from using the R.S.A. No.361 of 2009 -4- same and that the plaintiff and others have right of way over the plaint B schedule property as easement by prescription. The lower appellate court also held that the findings entered by the trial court was perfectly justifiable. The courts below after analysing the oral and documentary evidence adduced by both sides and the court exhibits, concurrently find that the plaintiff and her family members have right of way over the plaint B schedule property as easement by prescription. The contentions urged by the learned counsel for the defendants/ appellants challenging the legality of the verdicts passed by the courts below cannot stand. I am of the view that the questions raised by the learned counsel for the defendants/ appellants are decided by the courts below after considering the evidence, facts and circumstances. I find no reason to interfere with the factual findings recorded by the courts below and to invoke Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No.361 of 2009 ---------------------------- JUDGMENT 12th June, 2009