IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 RSA.No. 768 of 2011() --------------------- AS.172/2009 of ADDL. DISTRICT COURT, PARAVUR OS.161/2007 of MUNSIFF COURT, PARAVUR .................... APPELLANT/APPELLANT/DEFENDANT NO.1 ---------------------------------------------------------------- SAJI @ SHAJIMON (WRONGLY SHOWN AS SHAJI)AGED 39YEARS, S/O.YOHANNAN, R/A.PAPPALI HOUSE, KONGAORAPILLY KARA, ALANGAD VILLAGE, ERNAKULAM BY ADV. SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN SRI.P.A.HARISH RESPONDENT(S): RESPONDENTS/PLAINTIFFS & 2 nd DEFENDANT -------------------------------------------------------------------------------------------- 1. TREESA JOSE, AGED 53 YEARS, W/O.JOSE,AGED 53 YEARS, W/O.JOSE,R/A.KANJIRAPPILLY HOUSE, KONGORAPPILY KARA, ALANGAD VILLAG,E 1ST LINE ROAD, P.O.KONGORAPPILLY,ERNAKULAM-683518 2. ANY CLEATUS, AGED 61 YEARS, W/O.CLEATUS, R/A.KOLLAMPARAMBIL HOUSE, KONGORAPPILY KARA, ALANGAD VILLAGE KONGORAPPILY KARA, ALANGAD VILLAGE 1ST LINE ROAD, P.O.KONGORAPPILLY,ERNAKULAM-683518 3. PAULY ITTYKURIAN, AGED 62 YEARS, W/O.ITTIKURIAN, RISIDING AT MOOLAN HOUSE, KONGORAPPILY KARA, ALANGAD VILLAGE ,1ST LINE ROAD, P.O.KONGORAPPILLY,ERNAKULAM-683518 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No.768 OF 2011 =========================== Dated this the 14th day of July,2011 JUDGMENT First defendant in O.S.No.161/2007 on the file of Munsiff Court, North Parur is the appellant. Respondents 1 an 2 are the plaintiffs and third respondent the second defendant in the suit. Respondents 1 and 2 instituted the suit seeking a decree for permanent prohibitory injunction restraining the defendants from enclosing with their property,the plaint C schedule way and causing obstruction to the way contending that plaint C schedule way is having a width of six feet which starts from the northern public road and proceeds towards the south and on reaching the plaint B schedule property proceeds towards the west and then proceeds towards the south and then reaches the plaint A schedule property. R.S.A.768/2011 2 They claim right of way by easement of necessity and the defendants are not entitled to cause any obstruction. Defendants did not object to the right of way claimed but only dispute the width of the way. Learned Munsiff on the evidence found that the evidence show that width of the way is six feet which is being used by the plaintiffs and the defendants and declared the right of way and granted a decree for injunction restraining the defendants from enclosing the said six feet of pathway or causing obstruction to the said way. Second defendant did not challenge the decree. Appellant challenged the decree before Additional District Court, North Parur in A.S.172/2009. Learned Additional District Judge on reappreciation of the evidence confirmed the decree and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that courts below were not justified in fixing the width R.S.A.768/2011 3 of the way at six feet in the absence of proper evidence. Learned counsel argued that courts below found that the report of the Commissioner and the plan will not show the exact width of the disputed way and also that the property covered under Ext.B1 was not identified. It was pointed out that the property covered under Ext.B1 lies immediately to the south of the public road and the eastern boundary is the undisputed way and without identification of that property, the width of the way should not have been fixed. Learned counsel also argued that though respondents 1 and 2 contended that third respondent/second defendant had surrendered four feet of width of land for widening the six feet witdth of way, there is no evidence to prove the surrender and submitted that appellant would not have purchased the property covered under Ext.B1 for widening the way, unless the width of the way is ten feet further towards the west of the plaint B schedule property upto the property of the appellant and on the evidence, R.S.A.768/2011 4 courts below were not justified in fixing the width of the way in the absence of evidence as the Commissioner has not noted the width of the portion of the way proceeding from the western corner of the plaint B schedule property towards the west upto the property of the appellant. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 5. The only dispute in the appeal is with regard to the width of the way which is available to the plaintiffs as well as the defendants. Whether the width of the way is six feet or 1.2 metres as canvassed by the appellant is a question of fact. The trial court on the evidence found that the width of the way being used by the plaintiffs and defendants is six feet. The appellate court on reappreciation of the evidence confirmed that factual finding. The question is whether on the evidence, the said findings of the courts below is said to be not in accordance with R.S.A.768/2011 5 the evidence. 6. Though learned counsel appearing for the appellant vehemently argued that there is no evidence to prove that the property covered under Ext.B1 was purchased by the appellant for widening the road and relying on the eastern boundary shown in Ext.B1 that the way is having only a width of 1.2 metres it was argued that the way available to respondents 1 and 2 could only be a way having a width of 1.2 metres, I cannot agree with the submission. Normally there is no necessity to show the width of the way, which forms the boundary of the property in a sale deed. The southern boundary shown in Ext.B1 is a way. But the width of that way is not mentioned. At the same time, the eastern boundary is shown as a way with the width of 1.2 metres. The anterior title deed was not produced to show that when the assignor of the appellant purchased the property, the eastern boundary was shown as a way with a width of 1.2 metres. Therefore based on the width of the way R.S.A.768/2011 6 shown on the eastern boundary of Ext.B1 it cannot be found that the width of the way was only 1.2 metres and not six feet as found by the courts below. It is pertinent to note that a strip of land having a width of two metres which lies immediately to the west of the undisputed way and to the south of the public road and to the north of another way, would not have been purchased except for the purpose of using it for widening the way. Therefore it probabilise the case of respondents 1 and 2 that the property covered under Ext.B1 was purchased for widening the original way. In such circumstances, based on Ext.B1 it cannot be found that the width of the way was only 1.2 metres as canvassed by the appellant. So also for the reason that the width of the way is not ten feet to the west of the plaint B schedule property, upto the property of the appellant, it cannot be said that the property purchased under Ext.B1 was not for using it as a way. Courts below on appreciating the evidence found that the width of the way is six R.S.A.768/2011 7 feet. There cannot be any dispute with regard to the width of the way starting from the northern public road upto the plaint B schedule property. It is about ten feet. Dispute is only with regard to the width of the way towards the further west and south. On appreciating the entire evidence, I find no reason to differ with the findings of the courts below that the width of the existing way is six feet and respondents 1 and 2 are entitled to use that way and appellant is not entitled to cause any obstruction. Hence I find no merit in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006