IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 SA.No. 288 of 1996() -------------------- OS.15/1986 of SUB COURT, OTTAPPALAM AS.47/1987 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANT(S): -------------- MOIDUNNI, S/O.THACHARAYIL PALLATH AHAMMEDUNNI KAVUKKODU AMSOM & DESOM OTTAPPALAM TALUK BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J.VADAKKEN RESPONDENT(S): --------------- ALI ALIAS ALI, S/O.THACHARAYIL PALLATH MUHAMMED, KAVUKKODU AMSOM, DESOM OTTAPPALAM TALUK ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON FOR SRI.KODOTH PUSHPARAJAN FOR SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON 19/06/2009 DELIVERED THE FOLLOWING: P.BHAVADASAN, J. -------------------------------------------------------- SA NO.288 OF 1996-A -------------------------------------------------------- Dated 19th June 2009 Judgment Aggrieved by the concurrent finding on facts and consequent dismissal of suit by the trial court, as confirmed by the appellate court, the plaintiff in OS No.15/1986 before the Munsiff Magistrate's court, Pattambi has come up in appeal. 2. The plaintiff is in absolute possession and enjoyment of plaint A schedule property. Item No.1 in the plaint A schedule property was purchased by him from his father as per Sale Deed No.596/1963 and Item No.2 was acquired by him from his brother as per Sale Deed No.1334/1966. He resides in the said property. The father of the plaintiff had sold the plaint B schedule property and by successive arrangements, it ultimately came to vest with the defendant. Earlier to the assignment in favour of the plaintiff and the defendant, the properties were lying as contiguous plots. Plaint C schedule property is the pathway involved in the proceedings. Plaintiff had been using the said pathway for a long time. There was a suit in respect of SA 288/96 2 the said pathway as OS No.561/1965, wherein the plaintiff had to assert his right for the use of the pathway. The complaint in the plaint is that the defendant is obstructing the use of the said pathway by the plaintiff. During the pendency of the suit, alleging that the defendant has made some constructions in the pathway, the suit was amended, incorporating the prayer of mandatory injunction also. 3. The defendant resisted the suit on various grounds. He denies the existence of the pathway. According to the defendant, there is no need for the plaintiff to have a pathway as alleged by him since his property is abutting the road on the southern side. It is pointed out by the defendant that the decision in OS No.561/1965 was with respect to the same pathway and the decision in the said case binds the plaintiff. The defendant acquired the plaint schedule property in 1973. The defendant would say that he had put up a compound wall in that place. Pointing out that the plaintiff had no manner of right to use any portion of the property belonging to the defendant, he prayed for dismissal of the suit. SA 288/96 3 4. The court below, for the purpose of the suit, had PW1 to PW4 examined and Exts.A1 and A2 marked. From the side of the defendants, DW1 TO DW3 were examined and Exts.B1 to B6 were marked. Ext.X1 is the third party exhibit and Exts.C1 and C2 are the plan and report submitted by the Advocate Commissioner. 5. On an appreciation of the evidence adduced by the appellant before it, the court below found that the case put forward by the plaintiff has no merit and dismissed the suit. The plaintiff carried the matter in appeal as AS No.47/87 before the Sub Court, Ottappalam. The said court confirmed the judgment and decree of the court below. The said judgment and decree are assailed in this appeal. 6. Notice was issued on the substantial questions of law formulated in the memorandum of appeal. 7. The learned counsel appearing for the appellant pointed out that he had claimed a right to use the pathway by way of easement. According to him, there was a pathway shown as plaint C Schedule property and he and his predecessor in SA 288/96 4 interest were using it for a long time. The defendant had no manner of right to prevent his use. It is interesting to note that in the pleadings as well as in the evidence, the plaintiff does not appear to be very sure about his right. Of course, from the pleadings and the evidence, it can be seen that the plaintiff had put forward a claim of right of easement to use the pathway. He claimed that he has a right to use the pathway by easement based on prescription and grant also. For the purpose of contending that he is entitled to use the pathway involved in the proceedings, he relied on Ext.A1 agreement executed by one Muhammed, who is the brother of the plaintiff. Both the courts below did not accept this document for the reasons given in the respective judgments. 8. At the outset itself, it needs to be noticed that the plaintiff has not actually specified the nature of the right claimed by him for the use of C Schedule pathway before this court. It is contended now that he based his claim on Ext.A1 document and claimed easement by grant. SA 288/96 5 9. Before going into the above case, it will be useful to refer to the Commissioner's report. The Commissioner has also produced a rough plan. The Commissioner's report and the plan unerringly show that no such pathway is in existence as claimed by the plaintiff, in plaint C Schedule. It is also interesting to note that the plaintiff has direct access to the Main Road from his property. 9. The learned counsel appearing for the respondent pointed out that Ext.A1 cannot be looked into for the reason that it is not a registered document. An adjudication of that aspect is not necessary in this case. Even assuming there is an agreement Ext.A1 in existence, it is very doubtful whether it can be of any use to the plaintiff. As already noticed, Ext.A1 has been entered into between the plaintiff and his brother during the pendency of OS No.561/1965 between them. A reading of Ext.A1 would show that a mere permission had been given to the plaintiff and the members of his family to pass through the property owned by the defendant in OS No.561/1965. No specific way is carved out in Ext.A1. It is very clear that even SA 288/96 6 assuming Ext.A1 gives the right to the members of the family of the plaintiff to pass through the C schedule property, it is only personal and permissive and does not run with the land, so as to bind the successors in interest. 10. The courts below have considered all these issues in detail. Further, as already referred to, the plaintiff put forward the claim based on easement of necessity, prescription and by grant. While it may be possible for the plaintiff to take an inconsistent plea, it is well settled that at least at the time of trial, he has to opt one of the claims. That has also not been done in the present case. Ext.A1 is totally insufficient and inadequate to cloth the plaintiff with any right to use the alleged pathway running to the property of the defendant as per any manner of right. The courts below were, therefore, fully justified in passing the impugned judgment and decree. Accordingly, there is no merit in the appeal and it is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE SA 288/96 7 sta SA 288/96 8