IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 RSA.No. 1279 of 2008() ---------------------- AS.30/2005 of II ADDL.SUB COURT,KOZHIKODE OS.270/2002 of IST ADDL.MUNSIFF'S COURT, KOZHIKODE-I ................... APPELLANTS/ APPELLANTS/DEFENDANTS: ------------------------------------------ 1. MADHAVI, AGED 60, W/O.RAGHAVAN, KONIVAYAL, EDAKKAD AMSOM AND DESOM, KOZHIKODE TALUK. 2. C.RAGHAVAN, W/O.MADHAVI, AGED 65, KORANIVAYAL, EDAKKAD AMSOM AND DESOM, KOZHIKODE TALUK. 3. MURALEEDHARAN, AGED 42, S/O.RAGHAVAN, KORANIVAYAL, EDAKKAD AMSON AND DESOM, KOZHIKODE TALUK. 4. MANOHARAN, AGED 40, S/O.RAGHAVAN, KORANIVAYAL, EDAKKAD AMSOM AND DESOM, KOZHIKODE TALUK. 5. MADHULAL, AGED 33, KORANIVAYAL, EDAKKAD AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT/RESPONDENT/ PLAINTIFF: ------------------------- VEERAMMA, AGED 36, W/O.ARUMUGHAN, RESIDING AT KORANIVAYAL, EDAKKAD AMSOM AND DESOM, KOZHIKODE TALKU. ADV. SRI.JACOB ABRAHAM FOR R1 SMT.KOCHUMOL KODUVATH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.1279 OF 2008 --------------------------- DATED THIS THE 14TH DAY OF JULY, 2009 JUDGMENT Defendants in O.S.No.270/2002 on the file of the Ist Additional Munsiff's Court, Kozhikode are the appellants. This appeal is directed against the judgment and decree in A.S.No.30/2005 on the file of the IInd Additional Sub Court, Kozhikode. The suit for declaration and injunction was decreed by the trial court and it was confirmed in appeal. Hence, this second appeal. 2. The plaintiff claims title by virtue of Ext.A2 sale deed. According to her, the plaint schedule 2nd tak property shown in Ext.A2 is the pathway having a length of 14 feet and a width of 4 feet leading to the lst tak of the plaint schedule property. Therefore, the defendants have no manner of right to obstruct the said pathway leading to her house. The defendants contested the suit and opposed the reliefs sought for by the -2- R.S.A.No.1279/2008 plaintiff. It is contended by the defendants that the pathway leading to plaintiff's property is a public pathway situated on the southern side of the 2nd tak of plaint schedule property and that the said foot path joins with the main foot path on the eastern side of the lst defendant's property. It is the contention of the defendants that the Corporation pathway situated on the southern side of the 2nd tak of the plaint schedule property is the pathway leading to the plaint schedule property. It is also pointed out that the steps put up by the plaintiff shows that she is using the Corporation pathway for ingress and egress. It is further contended by the appellant/defendants that the plaintiff and her family have never used the orange shaded portion in Ext.C2(a) plan as a pathway and that the defendants or their predecessors in interest have never given any permission to use the said portion of their property as a pathway. 3. The trial court decided the issues on the basis of oral and documentary evidence of PW-1 and DWs.1 and 2, and -3- R.S.A.No.1279/2008 Exts.A1, A2, B1, B1(a), C1, C1(a), C2, C2(a) and X1 and considered for arriving at its conclusions. 4. It is the definite case of the plaintiff that she has purchased lst and 2nd tak of property by virtue of Ext.A2 sale deed. Ext.A2 produced by the plaintiff would show that she obtained title and possession over plaint schedule tak Nos.1 and 2 property having an extent of 5 cents. The Advocate Commissioner, who inspected the properties, has shown the disputed way as an orange shaded portion in Ext.C2(a) plan. The trial court perused Ext.A2 sale deed and held that the property assigned to the plaintiff and her husband consists of two taks. The 2nd tak starts from the south-eastern corner of lst tak of the property. The 2nd tak has a length of 14 meters towards east. The north-south measurement of 2nd tak is shown as 4 feet. The plaint schedule takes in both the taks. 5. The trial court, after considering the evidence on record, facts and circumstances, concluded that at the time when the -4- R.S.A.No.1279/2008 plaint schedule property was purchased by the plaintiff, 2nd tak property was assigned as a way to the lst tak and the severance of tenements necessitated to provide such a pathway to the plaintiff and accordingly 5 cents of property purchased by the plaintiff takes in both the taks together. The contentions of the defendants have considered in detail. The trial court, on the basis of the evidence on record, held that the defendants have no right over the 2nd tak of property which the plaintiff purchased by virtue of Ext.A2 sale deed and that the 2nd tak is used as a pathway by the plaintiff to reach her house situated in the lst tak. The claim of the defendants that it forms part of their own property was negatived by the trial court, finding that there is no basis for the same. The trial court also took into consideration the very fact that the defendants have not even produced any title deed nor proved that the disputed pathway is also forms part of their property. The relief sought for by the plaintiff was granted and a decree was passed accordingly, against which the defendants -5- R.S.A.No.1279/2008 filed an appeal before the Appellate Court. The Appellate Court also considered the entire questions in detail and agreed with the findings of the trial court. The findings entered by the court below are purely based on the facts, evidence and probabilities. I do not find any reason to take a different view other than the view taken by both the courts below in the given circumstances. The appellants have not made out any ground to invoke this Court's jurisdiction under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and it is accordingly dismissed in limine. Sd/- HARUN-UL-RASHID, Judge. kcv. The words “14 meters” occurring in page 3, paragraph 4, line 11 of the judgment dated 14/07/2009 in R.S.A.1279/2008 are corrected as “14 feet”. Vide order dated 13/10/2009 in I.A.No.2328/2009. Sd/- Registrar (Judicial) -6- R.S.A.No.1279/2008