IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 RSA.No. 640 of 2011() --------------------- AS.18/2005 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI OS.122/2002 of SUB COURT, TIRUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- GAFOOR,21 YEARS,EMPLOYED ABROAD, S/O.MOHAMMED,PUTUPARAMBIL HOUSE,POTHANNOOR AMSOM, NARIPARAMB DESOM,PONNANI TALUK,MALAPPURAM DISTRICT (REP.BY HIS P/A.H.PUTHUPARAMBIL MAJEED,34 YEARS, S/O.MOHAMMED PUTHUPARAMBIL(H),POTHANNOOR AMSOM, NARIPARAMBA DESOM PONNANI TALUK,MALAPPURAM DIST. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. MOHAMMED @ KUNHUMON,AGED 53 YEARS, S/O.ALI,PONNAMKUNDIL HOUSE, PO NARIPARAMBA, POTHANOOR AMSOM,NARIMAPRAMB DESOM,PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 573. 2. ABOOBACKER @ SIDDIQUE,AGED 48 YEARS, S/O.ALI,PONNAMKUNDIL HOUSE,POTHANNOOR AMSOM, NARIPARAMB DESOM,PO NARIMPARAMB,PONNANI TALUK, MALAPPURAM DISTRICT,PIN 679 573. 3. NABEESA,AGED 43 YEARS, W/O.ABOOBACKER @ SIDDIQUE,PONNAMKUNDIL HOUSE, POTHANNOOR AMSOM,NARIPARAMB DESOM,PO NARIMPARAMB, PONNANI TALUK,MALAPPURAM DISTRICT,PIN 679 573. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.640 of 2011 ............................................ DATED THIS THE 20th DAY OF JULY, 2011 JUDGMENT Plaintiff in O.S.122 of 2002 on the file of Sub Court, Tirur is the appellant. Respondents are defendants. Appellant instituted the suit seeking a decree for declaration of right of way by easement of prescription and permanent prohibitory injunction. Appellant contended that the plaint schedule property was assigned by Devakiamma under document No.31/1965 in favour of Koyakutty and Muhammed and appellant is the son of Muhammed and Koyakutty is the elder brother of Muhammed and under Ext.A1 partition deed, they divided the property in 1970 and item No.2 of B schedule property in the partition deed was alloted to the share of Muhammed and on the death of Muhammed, his rights devolved on the appellants and other legal heirs and appellant has been in enjoyment of the property since then and the property on the eastern side of the plaint schedule property belongs to respondents and further east is the National Highway and the way from the plaint schedule property RSA 640/2011 2 to the National Highway is through the property of respondents and the way is having a width of 4 feet and appellant has been using that way continuously, uninterruptedly and openly as of right for more than 20 years and therefore he has prescribed a right of way. Subsequently, the plaint was amended contending that the defendants have contended that third respondent has purchased the property from Nellikkal Vasu on the east of their property and it is through that property, they have access to National Highway on the east and that property was purchased in 1991 and the right of way available to appellant cannot be effected by the said assignment. 2. Respondents resisted the suit contending that respondents 1 and 2 purchased the property as per document 1343/1967 and 1345/1967 from Kalliani Amma and Raman Nair and there was no way from the National Highway to that property and on the eastern side, there is the property of Madrassa and the way was through the property of Madrassa and on the east of their property was the property of Vasu and third respondent purchased 5 ¾ cents for the purpose of using it as a way to reach the National Highway as per sale deed 1072/1991 and third RSA 640/2011 3 respondent is the wife of second respondent and respondents 1 and 2 have constructed two houses in their property and the property purchased from Vasu was developed and a way was formed into their house subsequently and the way now claimed by the appellant is through the middle of the house and there are septic tanks and sewage pipes on the way claimed by the appellant and appellant has not been using the way through their property and he has not prescribed a right of easement by prescription and therefore suit is to be dismissed. 3. Learned Munsiff on the evidence of Pws 1 to 4, Exts.A1 to A3, Dws 1 and 2, B1 to B4, C1, C2 and X1 dismissed the suit finding that appellant did not establish that he has been using the way through the property of respondents for more than 20 years and that too, as of right, openly and peacably without interruption and therefore he is not entitled to the decree for declaration of right of way by easement of prescription. Appellant challenged the judgment before Additional District Court, Manjeri in A.S.18 of 2005. Learned Additional District Judge, on re- appreciation of evidence, confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the RSA 640/2011 4 second appeal. 4. Learned counsel appearing for appellant was heard. Learned counsel made available a copy of the report, plan and depositions of the witnesses and argued that both the courts below failed to appreciate the entire evidence in the proper perspective and preponderance of probabilities establish that the appellant has been using the disputed way as of right and as an easement continuously and openly for more than 20 years prior to the institution of the suit and therefore a decree should have been granted. The argument of the learned counsel is that when the Commissioner could not note a way either towards the west through the property of Koyakutty or through the property of the Madrassa and the only way available is towards the west through the property of the respondents it should have been found that appellant has been using that way for more than 20 years, as the property was purchased in 1965 and was divided under Ext.A1 in 1970 and no other way is available to reach the plaint A schedule property. Learned counsel would argue that courts below should not have given undue importance to the evidence of PW1 that he has not used the property of Vasu to reach the National Highway RSA 640/2011 5 as PW1 may not be aware of the ownership of the property through which he was walking. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. As the appellant is claiming a right of way by easement of prescription, he has to prove the ingredients as provided under Section 15 of Indian Easement Act. Appellant has to establish that he has been using the disputed way openly, peacably and without interruption and that too as of right and as an easement for more than 20 years prior to the institution of the suit. The way claimed by appellant is through the property of respondents. The way so claimed enters the National Highway, through the property, which was subsequently purchased by third respondent in 1991 from DW2, Vasu. The evidence of DW2 establishes that no way existed through his property and he sold that property to third respondent in 1991 and thereafter it was filled up and a way was formed. Though the learned counsel vehemently argued that the admission of PW1 that he was not using the way passing through the property of Vasu to reach the National Highway may not be taken as an admission that he was not using the disputed way RSA 640/2011 6 and ignorance of the ownership of the property cannot be taken as a ground to defeat his right. Evidence of PW1 in cross examination establishes that he was aware of the property of Vasu and also that Vasu sold that property to third respondent and that property was subsequently filled up and a way was formed. In the light of the evidence of PW1, the evidence of DW2 that appellant was not using any portion of his property as a way is to be accepted as correct. When the entire evidence is appreciated in the proper perspective, it cannot be said that the factual finding of the courts below that appellant failed to establish that he has been using the disputed way for more than 20 years openly and peacably without interruption as of right is perfectly in accordance with evidence. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk