IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 RSA.No. 359 of 2010() --------------------- AS.86/2007 of SUB COURT, PALA OS.316/1997 of MUNSIFF COURT, PALA .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------- 1. K.T.JOSEPH, S/O.THOMAS, THALACHIRA HOUSE, ANTHINADU KARA, LALAM VILLAGE, MEENACHIL TALUK. 2. RAJESH JOSEPH, S/O.K.T.THOMAS, RESIDING IN DO. DO. DO. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: -------------------------------- JOY MICHAEL, S/O.MICHAEL, THALACHIRA HOUSE, ANTHINADU KARA, LALAM VILLAGE, MEENACHIL TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.359 of 2010A --------------------------------------- Dated this 07th day of April, 2010 JUDGMENT Defendants are before me with this second appeal challenging concurrent finding of courts below as to the right of respondent for access through plaint B schedule under a claim of easement by prescription. It is not disputed that plaint A schedule belong to the respondent as per settlement deed No.936 of 1988. According to the respondent, there is a 12 feet wide road starting from Pala- Thodupuzha road and reaching plaint A schedule which at one point branched and led to the property of appellants. Respondent claimed that himself and family members were using the said road for access to the plaint A schedule from 1966 onwards as of right, without interruption continuously, openly and peaceably. A portion of the said road passing through property of the appellants is described in plaint B schedule. He sued for prohibitory injunction on the allegation that appellants obstructed his user and tried to close down that portion of the road leading to plaint A schedule. Appellants contended that there is no such road leading to plaint A schedule and that there is only one road which started from the Pala-Thodupuzha R.S.A. No.359 of 2010 -: 2 :- road and reached their property. They also claimed that they have right to put up gate on that road for its protection. Appellants denied the right claimed by respondent. Respondent examined PWs.1 to 7 and proved Ext.A1. Appellants examined DWs.1 to 3 and proved Exts.B1 to B3. Exts.C1 and C2(a) are report and sketch prepared by the Advocate Commissioner. Trial court found from the evidence that pathway as claimed by the respondent existed though there was some difference regarding width claimed by the respondent. Trial court observed from Ext.C1 that a tube well was constructed in plaint A schedule and necessarily vehicles were taken to the plaint A schedule for the said purposes through the disputed road. Trial court also observed that Ext.B1, order of the Sub Divisional Magistrate is not in anyway relevant for consideration so far as dispute involved is concerned. Trial court found in favour of the existence of the pathway as claimed by the respondent but of course as described in Ext.C2(a) and its user from 1966 onwards is claimed by the respondent which conferred on him the right of easement by prescription. First appellate court concurred with the finding but modified the decree granting relief to the respondent in respect of plaint C schedule way. R.S.A. No.359 of 2010 -: 3 :- 2. One contention raised by appellants in the trial court is that there was an obstruction to the user of the pathway in the year 1980 when a portion of the pathway was given up and it was widened making use of the property acquired by the appellants as per Ext.B3 in the year 1980. The contention raised is that on account of the said work there was obstruction and hence suit filed beyond two years of the obstruction is not maintainable. Trial court referred to Explanation II to Section 15 of the Indian Easements Act (for short, “the Act”) to hold what exactly is 'interruption' and held that development work on the disputed pathway consequent to the acquisition of a portion of the land as per Ext.B3 in the year 1980 may have temporarily affected the enjoyment of the road but that did not amount to 'interruption' as understood in law. First appellate court while confirming the right claimed by respondent stated that he is entitled to use the pathway as described in plaint C schedule and modified the decree of the trial court accordingly. Hence the second appeal urging by way of substantial questions of law whether courts below were right in declaring the right claimed by the respondent and whether the suit is maintainable since it is instituted two years after the obstruction. R.S.A. No.359 of 2010 -: 4 :- 3. So far as right claimed by the respondent is concerned, it is proved by the evidence of PWs.1 to 7 and Exts.C1 to C2(a). Courts below on the evidence on record found in favour of the right claimed by him and that involved no substantial question of law. Another contention raised is concerning maintainability of the suit and since it is filed after two years beyond the alleged interruption in the year 1980. 'Interruption' is explained by Explanation II to Sec.15 of the Act as something which materially and substantially inferred with the right of easement. Here, obstruction alleged is that at the time pathway was widened in the year 1980 there was some obstruction to its user. That does not amount to interruption and at any rate was only temporary. 4. Then the question is whether modification made by the first appellate court was justified. Trial court relied on Ext.C2(a) to hold in favour of the width of the pathway. That is the plan prepared by the Surveyor. Trial court observed that going by plaint C schedule and Ext.C2(a) there is slight difference in width. First appellate court found in favour of the existence of pathway as described in C schedule and modified the decree accordingly which is permissible under Order 41 Rule 33 of the Code of Civil Procedure. At any rate, R.S.A. No.359 of 2010 -: 5 :- modification effected by the first appellate court does not involve any substantial question of law. I do not find any substantial question of law involved in the second appeal. Resultantly the second appeal is dismissed in limine. (THOMAS P JOSEPH, JUDGE) Sbna/-