IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 RSA.No. 550 of 2009() --------------------- AS.43/2000 of SUB COURT, TIRUR OS.268/1996 of M.C.,PARAPPANANGADI .................... APPELLANT/PLAINTIFF --------------------------------------- KUTTIALI,AGED 70 YEARS, S/O.CHANDRAMTHODI UNNIKOYA,VALLIKUNNU AMSOM DESOM, TIRUR TALUK. BY ADV. SRI.ALAN PAPPALI SRI.DHANYA P.ASOKAN RESPONDENTS: RESPONDENTS/DEFENDANTS ------------------------------------------------------------------ 1. VALIYACHALAKKAL NARAYANAN @ NAYADI, AGED 68 YEARS,S/O.NEELANDAN,VALLIKUNNU AMSOM DESOM, THIRUR TALUK. 2. UNNI, AGED 35 YEARS, S/O.NARAYANAN @ NAYADI, VALLIKUNNU AMSOM DESOM,THIRUR TALUK. 3. KODAKKATTAKATH ASSAN,AGED 48 YEARS, S/O.MUHAMMED,VALLIKUNNU AMSOM DESOM,THIRUR TALUK. 4. ABOOBACKER,AGED 43 YEARS,S/O.MUHAMMAD, VALLIKKUNNU AMSOM DESOM,THIRUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------------------- R.S.A.No.550 of 2009 --------------------------------------- Dated this the 3rd day of August, 2009 JUDGMENT The plaintiff in O.S.No.268 of 1996 on the file of the Munsiff's Court, Parappanangadi is the appellant. The appeal is directed against the judgment and decree in A.S.No.43 of 2000 on the file of the Sub Court, Tirur. The suit was for prohibitory injunction. The trial court dismissed the suit. In the appeal filed by the plaintiff, the dismissal was confirmed. Hence, the second appeal. 2. The facts in brief are as follows; The plaint schedule property is a residential property belonging to the plaintiff. It is stated that the said property is situated within well-defined boundaries on all sides. The defendants 1 and 2 are residing on the western side of the plaint schedule property and defendants 3 and 4 on the southwestern side. It is the case of plaintiff that there is a public edavazhi on the eastern side of plaint schedule property lying north-south and entry to the plaint schedule property is from the said edavazhi which goes towards north further, then turns towards west then towards north. The plaintiff further stated that there R.S.A.No.550 of 2009 2 is direct access to the 3rd and 4th defendants’ property from the said edavazhi through north and defendants are using the said way for the purpose of ingress and egress to their respective properties. The defendants have no manner of right to interfere with the exclusive possession and enjoyment of plaint schedule property and should be restrained from altering the nature of the property. 3. In the joint written statement filed by the defendant it is inter alia contented that defendants are residing on the western side of plaint schedule property, further a way is passing through the east of plaint schedule property north-south, however they deny the existence of way further towards north which turns west, north and this is being used as a way of access towards defendants' property. They denied the allegation of the plaint and contended that there exists no way that starts from north- eastern corner of the 1st defendant's property reaching the said pathway on the north. It is the definite case of the defendants that an edavazhi is passing through the eastern side of the plaint schedule property north-south and it deviates through the southern portion of the plaint schedule property towards west R.S.A.No.550 of 2009 3 and further proceeds towards west through the southern portion of 1st defendant's property and ultimately reaches the property of defendants 3 and 4. They contented that this is an old way used by the defendants for the past more than 22 years and they are using it openly, peacefully and continuously without any obstruction from anyone. They pleaded that they had acquired prescriptive easement right over this way. 4. The trial court examined the questions in dispute in detail. The oral evidence of PWs.1 and 2, DWs.1 to 4, Exts.A1, A2 and D2 and Exts.C1 to C8 commissioner's report and plan are also relied on. The trial court on evaluation of the evidence held that the evidence on record conclusively establishes that the disputed way is in existence for the past many years beyond the statutory period, in use by the defendants and their predecessors in interest. The question as to whether defendants had established the prescriptive easement right over the disputed way was also examined by the trial court in detail. The trial court held that there is evidence of use of the way by defendants 1 and 2 as tenants for years, which cannot be tackled with the period after they got absolute title. Regarding the right of defendants 3 and 4 R.S.A.No.550 of 2009 4 the trial court held that the pleadings and evidence establish that defendants 3 and 4 are residing in the house which is in existence for more than 22 years and that they had been using the pathway for more than the statutory period and therefore they have acquired prescriptive easement right of way through the plaint schedule property. 5. On consideration of oral and documentary evidence adduced by the parties, the trial court rightly held that what emerges is that defendants had succeeded in establishing existence of a way through the southern portion of the plaint schedule property and defendants 3 and 4 had established their prescriptive right over the property. Defendants 1 and 2 are using the same way. It is held that since the period of use of the way as lessees cannot be tackled for computing the statutory period of 20 years, and therefore the trial court declined relief to the plaintiff. The court below also relied on Exts.C1, C3, C5 and C7 Commissioners' Report and Ext.C2, C4 sketches and Ext.C6 & C8 plans prepared by the Advocate Commissioner which shows that there are unmistakable signs and traces of the existence of a pathway on the southern boundary of the plaint schedule R.S.A.No.550 of 2009 5 property. The courts also noted that in all the reports and sketches the Advocate Commissioners has indicated the existence of a well demarcated pathway from the courtyard of the house of defendants 3 and 4 going towards east reaching the plaint schedule property. It is also noted that old stones that demarcate both sides of this way is 25 to 30 years old. The contention of the plaintiff that the defendants have alternative ways was also examined. The court below held that though there is a way to reach the properties of defendants, the way is not directly leading to the properties of the defendants, but are round about ways from which the properties of the defendants can be approached if they so desire. Finding that the plaintiff failed to substantiate his case for the equitable remedy of injunction against the defendants, the suit was dismissed and for the very same reason the appellate court also was not inclined to interfere with the findings of the trial court. Both courts elaborately dealt with the question and in my view answered the questions correctly. The appellant failed to substantiate his contention that he is in absolute possession and enjoyment of the plaint schedule property. In the said circumstances the findings based on facts R.S.A.No.550 of 2009 6 entered by the court below cannot be re-agitated in the appeal. I find that the appellant has not made any sustainable ground to invoke this court’s jurisdiction under Section 100 C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence, this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE Skj.