IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 RSA.No. 63 of 2010() -------------------- AS.84/2005 of I ADDITIONAL SUB COURT, KOZHIKODE OS.775/2000 of PRINCIPAL MUNSIFF COURT , KOZHIKODE-II .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------- (*) MUNDOLI ABDURAHIMAN HAJI S/O.LATE MAYIN, AGED 63 YEARS MANANDANACHALIL HOUSE, NALLALLAM AMSOM DESOM KOZHIKODE TALUK. (DIED. LRS IMPLEADED) ADDL. APPELLANTS IMPLEADED: 2. NAFISA, W/O.LATE MANDOLI ABDURAHIMAN HAJI, AGED 60, MANANDANACHALIL HOUSE, NALLALAM AMSOM DESOM, KOZHIKODE. 3. UMMAYA, D/O.LATE MANDOLI ABDURAHIMAN HAJI, AGED 44, MANANDANACHALIL HOUSE, NALLALAM AMSOM DESOM, KOZHIKODE. 4. KUNHIMUHAMMED, S/O.LATE MANDOLI ABDURAHIMAN HAJI, AGED 40, MANANDANACHALIL HOUSE, NALLALAM AMSOM DESOM, KOZHIKODE. 5. M.AFSAL, S/O.LATE MANDOLI ABDURAHIMAN HAJI, AGED 40, MANANDANACHALIL HOUSE, NALLALAM AMSOM DESOM, KOZHIKODE. (*)ADDL.APPELLANT NOS.2 TO 5 ARE IMPLEADED AS THE LRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 25.2.2010 IN IA NO.158/2010. BY ADV. SRI.A.BALAGOPALAN SRI SANEESH KUMAR K. RESPONDENT(S): --------------- KOZHIKODE DISTRICT PANCHAYATH, REPRESENTED BY ITS SECRETARY OFFICE OF THE DISTRICT PANCHAYATH, CIVIL STATION, KOZHIKODE-20 ADV. SRI.S.SREEKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.63 of 2010 -------------------------------------- Dated this the 8th day of April, 2010. JUDGMENT The Second Appeal arises at the instance of the unsuccessful plaintiff. Suit property belonged to the appellant/plaintiff as per partition deed No.2692 o 1968 and according to him he is running two factories in the said property. He claimed that his access to the said factories was through property of Madathilthodi Sumathy and that the pathway through the said property is having a width of 14 feet and 105 feet length. According to the appellant, his father had granted a lease of the said property to the said Sumathy as per a registered deed No.2146 of 1944. He claimed that he had no other access to the suit property. The officials of the respondent are creating obstruction in his user of the way through the property of Sumathy and hence the suit. Respondent contended that there was no notice as required under Section 249 of the Kerala Panchayat Raj Act and that the land in between the property of appellant and Kolathara-Nallalam road belong to the respondent the same having been acquired by the Government for its purposes on 11.8.2000. The survey plan and other documents relating to the acquired property do not reveal that there was any such road through it. Before the Land Acquisition Officer also appellant had not made any claim for access through the acquired property. It is also claimed that appellant has direct access to his property from the road on the north. Respondent wanted to construct industrial estate in the acquired land. Appellant RSA No.63/2010 2 gave evidence as PW1 and proved Exts.A1 to A10. Representative of the respondent gave evidence as DW1 and proved Exts.B1 and B2. Exts.C1 and C2 are the report and plan prepared by the advocate commissioner. Trial court found against the claim of the appellant and dismissed the suit. That was confirmed by the first appellate court. Hence the Second Appeal urging by way of substantial questions of law whether the decision of the courts below are legally justifiable, whether the courts below are legally correct in holding that the acquired property would vest absolutely in the Government free from all encumbrances and whether the courts below are justified in ignoring Ext.A2. Learned counsel for appellant placed reliance on the decision in P.C.Jacob v. G.C.D.A. and others (1993 (1) KLJ 918). Learned counsel for respondent would submit that there is no substantial question of law involved in the matter. 2. It is not in dispute that suit property belong to the appellant as per partition deed No.2692 of 1968. His contention is that the property adjoining that property which originally belonged to his father was given on lease to Sumathy as per registered deed No.2146 of 1944 and that he is enjoying a right of way through the said property. Ext.A2 is produced in support of that claim. That is a letter said to have been issued by the said Sumathy in favour of the father of appellant. Courts below were not inclined to accept and act upon Ext.A2. First RSA No.63/2010 3 appellate court observed that Ext.A2 is a fabricated document. Learned counsel for appellant would contend that courts below went wrong in finding against Ext.A2. It is also the contention of the learned counsel that the possession of the property acquired was not taken over by the Government and handed over to the respondent. 3. I have gone through copy of plaint (given to me by the counsel for respondent for perusal). The claim in the plaint is one of ownership, exclusive user, occupation and enjoyment of the disputed way through the property acquired. On going through the plaint I was not able to find any claim of easement over the disputed way. Hence it is not necessary to go into the issue whether appellant has any right of easement over the disputed way. 4. So far as Ext.A2 is concerned its due execution was found against by the first appellate court. Concededly, the person who is said to have executed Ext.A2 has not been examined. The said document is said to have been executed on the day appellant's father created lease in favour of Sumathy as per registered deed No.2146 of 1944. First appellate court has observed that if any such consent as stated in Ext.A2 was given by the lessee there was RSA No.63/2010 4 no difficulty to recite that in the lease deed itself rather than separately give a consent letter. Courts below were thus not inclined to place reliance on Ext.A2 and that being a finding of fact, involves no substantial question of law. 5. It is not disputed that the property over which the appellant is now claiming right of access (by way of ownership, exclusive user, possession and enjoyment as stated in the plaint) has been acquired by the Government for the benefit of respondent. The acquisition was on 11.8.2000. Exts.B1 and B2 show that there was acquisition of the property of Sumathy and that was followed by an award. Hence acquisition and taking over possession of the property cannot be disputed. Appellant who has no ownership or possession over the property acquired and cannot contend that the property was not taken possession by the Government on behalf of the respondent. Hence the decision relied on by the learned counsel has no application to the facts of the case. Evidence on record revealed that the property of Sumathy has been acquired by the Government on behalf of the respondent and it was taken possession as well. Now the respondent wants to establish an industrial estate in the suit property. I stated that no claim of easement over the way allegedly existing through property of Sumathy and acquired by the Government is raised in this proceeding and hence, that issue is not required to be gone into in this proceeding. The decision in this case is based on the facts pleaded by the RSA No.63/2010 5 appellant. On going through the judgments under challenge and hearing learned counsel on either side I am satisfied that no substantial question of law is involved in the matter requiring admission. Accordingly, Second Appeal is dismissed in limine. I.A.No.159 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks