IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 RSA.No. 307 of 2011 --------------------------------- AS.14/2004 of SUB COURT, OTTAPPALAM OS.458/2001 of MUNSIFF COURT, OTTAPALAM .................... APPELLANT/APPELLANT/DEFENDANT: PADMANABHAN, S/O.MOOCHIKKAL VELU, RESIDING AT KARALMANNA AMSOM, NADUVATTOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY SR. ADV. SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS/SUPPL. RESPONDENTS/LRs OF PLAINTIFF: 1. VISALAKSHI, D/O.LATE AYYAPPAN, 2. PUSHPALATHA, D/O.LATE AYYAPPAN, 3. M.BALAGOPALAN, D/O.LATE AYYAPPAN, 4. M.NIRAMALA, D/O.LATE AYYAPPAN, ALL ARE RESIDING AT MOOCHIKKAL VEEDU, NADUVATTOM P.O., KARALMANNA, CHERPULASSERY, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679 308. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.307 of 2011 --------------------------------------- JUDGMENT Defendant in O.S.No.458/2001 on the file of Munsiff's Court, Ottapalam is the appellant. Legal heirs of the plaintiffs are the respondents. Respondents instituted the suit seeking a decree for mandatory injunction to remove the obstruction caused to plaint B schedule way and to restore it to its original position and for a permanent prohibitory injunction restraining appellant from obstructing the way. Respondents contended that plaint A schedule property belongs to them and they are residing in that house and the properties including plaint A schedule property was divided under Exhibit A1 partition deed in 1947 and there existed a way passing through the northern side of the property of the appellant and the only access to plaint A schedule property was plaint B schedule way and respondents and their predecessors were using it as of right and as an easement without any obstruction since then and therefore, appellant is not entitled to cause any obstruction as they have a right of way by easement of prescription and as obstruction was RSA 307/2011 2 caused, it is to be removed. 2. Appellant resisted the suit contending that suit was instituted only as a counter blast to O.S.No.169/2001 filed by the appellant against respondents and there was no public way in existence at the time of 1947 partition and there is no way to plaint A schedule property passing through the property of the appellant as described and respondents have no right of way through the property of the appellant or a right of way over plaint B schedule way and therefore, respondents are not entitled to the decree of permanent prohibitory injunction as sought for. 3. Learned Munsiff, on the evidence of PWs 1 to 4, DW1 and Exhibits A1 and A2, B1, C1 and C1(a) and X and X1(a), granted a decree in favour of the respondents finding that evidence establish that plaint B schedule way was in existence before 1947 and under Exhibit A1 partition deed, including plaint A schedule property, properties were divided and evidence of DW1 establishes that this was the only way available to plaint A schedule property even in 1947 and appellant is, therefore, not entitled to cause any obstruction and respondents are entitled to RSA 307/2011 3 get the way restored to its original position by removing the obstruction caused. Appellant challenged the judgment before Sub Court, Ottapalam in A.S.No.14/2004. 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. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that there is no acceptable legal evidence to prove that respondents or their predecessors have been using plaint B schedule way as of right and as an easement without obstruction for the requisite period and admission of DW1 will not establish the ingredients to prove right of easement by prescription as provided under Section 15 of Indian Easement Act and therefore, the decree is not sustainable. 6. As rightly found by the courts below, evidence establish that there existed a way to plaint A schedule property through the property of the appellant since 1947. It is described as plaint B schedule way. Even when appellant was examined as DW1, in cross-examination, he unambiguously admitted that in 1947 RSA 307/2011 4 plaint B schedule way was in existence up to plaint A schedule property. He also admitted that this was the only way available to plaint A schedule property. In such circumstances, unless appellant has a case that the way was being permitted to be used, case of the respondents that they and their predecessors have been using plaint B schedule way as of right and as an easement, without any obstruction, can only be accepted. The finding of fact rendered by the learned Munsiff and confirmed by the learned Sub Judge that respondents and their predecessors have been using plaint B schedule way for more than twenty years as of right and as an easement without obstruction and they, thereby prescribed a right of way is perfectly correct. In such circumstances, the decree granted by the courts below is perfectly legal. On the facts, I find no substantial question of law involved in the appeal. Appeal is dismissed. 14th March, 2011 (M.Sasidharan Nambiar, Judge) tkv