IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RSA.No. 753 of 2009() --------------------- AS.3/2001 of SUB COURT, PAYYANNUR OS.372/1996 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------- KUTHIRAKKAL SREEDEVI, D/O.CHEMMARATHI, RESIDING AT RAMANTHALI AMSOM, KUNNURU DESOM, P.O.KARANTHAT, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT/RESPONDENT/DEFENDENT: ----------------------------------- MUTTIL RAJAN, S/O.KUNHIRAMAN, RAMANTHALI AMSOM, RESIDING AT KARANTHAT, KANNUR DISTRICT. ADV. SRI.O.V.MANIPRASAD THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.753 of 2009F --------------------------------------- Dated this 24th day of November, 2009 JUDGMENT Respondent appears through counsel. 2. Appellant who sued for a declaration of right of easement by prescription and by way of necessity (the latter claim was practically given up in the trial court itself) and prohibitory injunction lost in the courts below and have come up in second appeal agitating the findings entered against her by the courts below. It is not disputed that plaint A schedule belonged to the appellant. Dispute is regarding the pathway described in the plaint schedule which according to the appellant has width of three feet and length of three meters. According to the appellant, B schedule is her only means of access to the A schedule. Appellant claimed continuous, uninterrupted peaceful user of the said way as of right for more than 20 years. Respondent denied the right claimed by the appellant and the existence of the pathway. Respondent claimed that he has 40 cents in R.S.No.76/4B and through that property there is no pathway as pleaded by the appellant. Trial court found that existence of the pathway is not established and dismissed the suit. That finding was confirmed by the first appellate court. Hence the second appeal. Contention of learned counsel for appellant is that to hold against existence of the pathway trial court has relied on Exts.C3 and C4, report and plan prepared by the Advocate Commissioner which were set aside by that Court. R.S.A.No.753 of 2009 2 3. The suit was instituted on 10-12-1996 alleging existence of the disputed pathway. There was an interim order of injunction passed against respondent the same day and that order was served on the respondent without delay. Appellant did not take out a Commission at the time or atleast immediately after institution of the suit to prove existence of the disputed pathway. Instead, on 14-01-1997 respondent applied to the Court to appoint an Advocate Commissioner. DW3, Advocate Commissioner inspected the property and submitted Exts.C3 and C4, report and plan. Appellant preferred objection to Exts.C3 and C4 and applied to set aside the same. Appellant then applied for appointing another advocate commissioner. Respondent did not file counter to the application to set aside Exts.C3 and C4. Learned Munsiff allowed the application to set aside Exts.C3 and C4 for the mere reason that no counter was filed and appointed another advocate commissioner. That commissioner inspected the property on 10-11-1998 and submitted report and plan, Exts.C1 and C2. Trial court referred to Exts.C3 and C4 and evidence of DW3 also to hold against existence of the disputed pathway. First appellate court observed that trial court ought not have referred to Exts.C3 and C4 since the same had been set aside whatever be the reason thereof. First appellate court was correct in stating so since Exts.C3 and C4 had been set aside but the evidence of DW3 who inspected the properties (and prepared Exts.C3 and C4) cannot be effaced. Though not as the evidence of Commissioner, his evidence as a witness who had occasion to see the disputed properties can be taken R.S.A.No.753 of 2009 3 into account. His evidence would show that at the time of his inspection on 14-01-1997 the disputed way appeared to be newly formed with loose earth on the disputed way. He stated that on removal of the loose earth he could not find any pathway as claimed by the appellant. That evidence of DW3 has to be taken along with the fact that appellant, for reasons known to him refused or failed to take out a Commission at or atleast immediately after filing of the suit. Evidence of DW3 gets corroboration from the evidence of appellant as PW1 who claimed that he had cleared the disputed way (during the time DW3 inspected the properties). He admitted that he did so after obtaining the interim order of injunction. DW2 has stated that he saw appellant and her husband forming the disputed way during pendency of the suit. Evidence of these witnesses assumes importance in the light of the fact that appellant failed to take out a Commission at the time of institution of the suit. Courts below have considered the oral and documentary evidence on record to conclude that existence of the disputed pathway on the date of suit is not established. If so appellant cannot seek relief with respect to such a way. No substantial question of law is involved. The second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/