IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 RSA.No. 892 of 2010 --------------------------------- AS.66/2005 of SUB COURT, THODUPUZHA OS.72/2003 of MUNI-MAGI.COURT, THODUPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: KURIAKOSE, 51 YEARS, S/O.MATHAI, KALAYATHUPARA PUTHENPURAYIL HOUSE, KOTTAKKAVALA BHAGOM, MULAPPURAM KARA, KARIMANNOOR VILLAGE. BY ADV. SRI.SHIRAZ ABDULLA SRI.MUHAMMED NASARULLAH RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. K.M.MATHEW, 47 YEARS, S/O.MATHAI, KALAYATHUPARA PUTHENPURAYIL HOUSE, KOTTAKKAVALA BHAGOM, MULAPPURAM KARA, KARIMANNOOR VILLAGE. 2. GEORGE, 43 YEARS, S/O.MATHAI, DO. DO. 3. JOSEPH, AGED 60 YEARS, DO. DO. (DIED) It is recorded that R3 passed away pending the appeal before the lower appellate court and no further steps is necessary to implead the LRs (vide) order dt. 20.1.2011 in the appeal. BY ADV. SRI.T.J.MICHAEL FOR R1, 2 SRI.JOSE MATHEW (KAVALAKALAM) FOR R1, 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.No.892 of 2010 ---------------------------------------- JUDGMENT Plaintiff in O.S.No.72/2003 on the file of Munsiff Court, Thodupuzha is the appellant. Defendants are the respondents. Appellant instituted the suit for declaration of right of way over plaint B schedule property contending that it is the only way available to plaint A schedule property and appellant and his predecessors have been using that way for more than forty years as of right, as an easement without obstruction, continuously. First respondent is his brother. Under Exhibit A1 settlement deed of 1978, plaint A schedule property was allotted to the appellant as C schedule therein. Including plaint B schedule property, the property to its south was allotted to the first respondent as D schedule. Respondents have no right to cause any obstruction to that way. Respondents filed a written statement denying the right of way. They, in turn, instituted O.S.No.92/2003 seeking a decree for injunction contending that appellant attempted to make a way through their property. RSA 892/10 2 2. Learned Munsiff tried both the suits jointly. By common judgment dated 16.3.2005, both the suits were dismissed. Plaintiffs in O.S.No.92/2003 did not challenge the judgment. Appellant filed A.S.No.66/2005 before Sub Court, Thodupuzha challenging the judgment of the trial court. Learned Sub Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. When respondents appeared as notice before admission was ordered, as it was represented that appellant and first respondent are brothers and the dispute could be settled in mediation, appeal was sent for mediation. But the attempt for mediation failed. Learned counsel appearing for the appellant and respondents were heard thereafter. 4. Argument of the learned counsel appearing for the appellant is that plaint B schedule property is the only way available to plaint A schedule property, which was set apart to the appellant under Exhibit A1 and hence, courts below should have upheld the right of way. It was argued that reports of the Commissioner establish that there was no other way except plaint B schedule property and in such circumstances, courts RSA 892/10 3 below should have upheld the right of way. 5. Learned counsel appearing for the appellant made available copies of the plaint, reports and the plan submitted by the Commissioner and the depositions. A perusal of the plaint reveals that though a right of way was claimed over plant B schedule property, the specific right of easement claimed was not disclosed. It appears from the judgments of the courts below that right of way by easement of prescription was pressed. Learned counsel appearing for the appellant argued that as no other way is available and plaint A schedule property was divided from plaint B schedule property under Exhibit A1, there was a splitting up of the tenement and therefore, a right of way by easement of necessity exists. When there is no specific plea, such a case cannot be accepted in the second appeal. Moreover, Exhibit C3(a) plan submitted by the Commissioner shows that to the north of plaint A schedule property, there exists a way from the western mud road towards the east and it touches plaint A schedule property on its north. If the right claimed is right of way by necessity, such an alternate way is sufficient to reject the claim. In the plaint, it is seen that a right of easement by grant was also claimed. Exhibit A1 does not provide any way. RSA 892/10 4 Therefore, right of way by easement of grant can only be rejected. 6. What remains is only a right of way by easement of prescription. Till 1978, both the properties were admittedly being owned and possessed by the father and mother. C schedule property allotted to the appellant belongs to the father and D schedule to the mother. There is no case that father was using the property of the mother as of right and as an easement. Hence, the right, if any, would start only after Exhibit A1 settlement in 1978. Therefore, the only question is whether appellant has established that subsequent to Exhibit A1 he has prescribed a right of way by easement of prescription. Appellant has necessarily to prove that he has been using plaint A schedule property as of right and as an easement without obstruction continuously for the last twenty years, prior to the institution of the suit. Learned Munsiff and learned Sub Judge, on proper appreciation of evidence, found that appellant did not establish the said right. It is a finding of fact which cannot be interfered in the second appeal. Moreover, appellant is claiming right of way by easement of prescription not only through the property of the respondents but through the property of Sunny, which lies RSA 892/10 5 further to the south. That Sunny was not examined. There is no evidence to prove that said Sunny is admitting the right of way through his property. On the other hand, evidence is that he is disputing it. In such circumstances, courts below rightly found that appellant is not entitled to a right of way by easement of prescription. No substantial question of law is therefore involved in the appeal. 7. Learned counsel appearing for the appellant then submitted that first respondent, being the brother, a way could be provided to plaint A schedule property. Written statement filed by the first respondent establishes that he, along with Sunny, purchased a property for construction of a road under Exhibit B2 sale deed and first respondent was prepared to give a right to the appellant also. But, appellant was not agreeable to apportion the expenses and hence, a right was not given. Dismissal of the suit will not be a bar to the appellant to seek the permission of the first respondent to use that way amicably. Appeal is dismissed. 21st March, 2011 (M.Sasidharan Nambiar, Judge) tkv