IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 RSA.No. 424 of 2010() --------------------- AS.5/2000 of SUB COURT, OTTAPPALAM OS.95/1999 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANTS/APPELLANTS:PLAINTIFFS: ------------------------------------------------------------- 1. T.MUHAMMEDKUTTY, AGED 40 YEARS, BUSINESS, S/O.THENAMOOCHIKKAL VEETTIL MUHAMMED, RESIDING AT KARALMANNA AMSOM AND DESOM IN OTTAPALAM TALUK. 2. JAMEELA, AGED 32 YEARS, W/O.T.MUHAMMEDKUTTY, RESIDING AT DO. DO. 3. ERIPURATH MUHAMMEDKUTTY, AGED 49 YEARS, BUSINESS, S/O.ERIPURATH ALI, RESIDING AT NELLAYA VILLAGE, EZHUVANTHALA AMSOM & DESOM, OTTAPALAM TALUK BY POWER OF ATTORNEY HOLDER M.ALI, AGED 45YEARS, S/O.LATE M.K.HAJI, RESIDING AT KOTTAPPURAM HOUSE, THRIKKADEERI AMSOM, OTTAPALAM TALUK. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): RESPONDENT:RESPONDENT:DEFENDANT: ------------------------------------------------------------------------------------------- CHERPULASSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHERPULASSERY, OTTAPALAM TALUK. BY ADV. SRI.MILLU DANDAPANI THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------- R.S.A No.424 of 2010 -------------------------- Dated this the 26th July, 2010 J U D G M E N T Aggrieved by the concurrent findings against them, the plaintiffs in O.S.No.95/1999 before the Munsiff Court, Ottappalam have come up in appeal before this Court. 2. The suit was one for declaration and injunction. Plaint A, B and C schedule properties originally belonged to Panangad Tarwad. Appellants claim that the purchase of A schedule property was from Tarwad as per Exts. A1 to A3. They put up a shopping complex in the plaint A schedule property and also started a private market in the building. According to the plaintiffs, plaint B schedule property was purchased in 1977 by the Panchayat for the purpose of running a bus stand. The bus stand was established and a shopping complex was later constructed in the plaint B schedule property. At the time of purchase of B schedule property, C schedule pathway was provided for the purpose of reaching A schedule property from Cherpulassery Public Road to the B schedule property. According to the plaintiffs, there was in existence C R.S.A No.424 of 2010 2 schedule Pathway running through the B schedule property and they acquired right of easement by way of prescriptive to use C schedule. It is also contended that Panchayat put up a compound wall and an opening was provided by the Panchayat so as to enable persons who come to private bus stand and shopping complex constructed by the plaintiffs. The claim of the plaintiffs is that they have got the right of easement over C schedule way. Claiming easement of right over C schedule way and as to remove the hindrance put on the southern compound wall of the B schedule property which provide an opening to reach the shopping complex, the suit was laid. 3. Panchayat resisted the suit. They denied the existence of C schedule pathway. They have also denied the fact that there was four feet of opening in the compound wall so as to enable the persons who come in the bus stand to go over to the shopping complex put up by the plaintiffs. According to the defendants, plaintiffs had no manner of right over the plaint C schedule property. They pointed out that on 31.1.1999 a portion of compound wall R.S.A No.424 of 2010 3 was demolished by the plaintiffs. Asserting that the plaintiffs had no manner of right over C schedule, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 5 and Exts.A1 to A13 were marked from the side of the plaintiffs. Defendant had examined DW1 and Exts.B1 to B11 were marked. The Commissioner was examined as CW1. Exts.C1 and C2 are the commission report and plan. 5. On evaluation of the evidence in the case, the trial court found that the plaintiffs have not been able to establish any manner of right to use the property owned and possessed by the Panchayat and accordingly dismissed the suit. 6. Plaintiffs took up the matter in appeal as A.S.5/2000 before the Sub Court, Ottappalam. The lower appellate court on an independent evaluation of the evidence in the case found that there were no grounds to interfere with the judgment and decree passed by the trial court and therefore confirmed the judgment of the trial R.S.A No.424 of 2010 4 court. 7. Learned counsel appearing for the appellants contended that the courts below were not justified in dismissing the suit. It is pointed out that at the time of purchase of the property by the Panchayat, a way was provided by the Panchayat to the property owned and possessed by the plaintiffs. It is also contended that C schedule is the pathway starting from A schedule property and proceeding through the B schedule property and reaching the Pattambi-Cherpulassery road. 8. Learned counsel also pointed out that by the act of closing the opening earlier provided in the compound wall completely,the entry to the shopping complex will be completely cut off and that will affect their income. They have a right to get access from the Panchayat road to their shopping complex, contends the learned counsel for the appellants. 9. None of the contentions have any basis. The trial court has found that the existence of C schedule pathway had not been established at all. The court below R.S.A No.424 of 2010 5 has noticed that to enter from the A schedule property to the B schedule property no gap of 4 feet width was ever provided as contended by the plaintiffs. 10. It is also found that the Panchayat had not accepted the proposal putforward by the plaintiffs and they had not undertaken to provide any access to the shopping complex owned by the plaintiffs. 11. The trial court found that there were reasons to come to the conclusion that plaintiffs had no manner of right over B schedule property. 12. The lower appellate court re-evaluated the evidence in the case and found that the findings of the trial court were justified. It is also noticed that there was a police case against the appellants for the demolition of the compound wall. 13. The property was purchased by the panchayat in 1977. The appellants purchased the property only in 1996. Therefore, the question of prescriptive right of easement does not arise at all. The plaintiffs have not examined their predecessors in interest to show that they R.S.A No.424 of 2010 6 had acquired a prescriptive right of easement. A reading of the judgment of the lower appellate court shows that there is a Panchayat road on the western side of the plaint schedule property. If that be so, it is difficult to believe that a narrow strip of land would have been kept aside as shown in C schedule. The main contention raised by the appellants was that the appellants had agreed to abide by two conditions in Ext.A4 notice sent by the predecessor in interest of the plaintiffs. However, Ext.A8 shows that Panchayat had not agreed to any of the conditions and it was an assignment without any conditions whatsoever. Both the courts below were unable to locate the right vested with the plaintiffs to enable them to claim that they are entitled to use C schedule pathway and also entitled to be provided with an opening in their compound wall for access to the shopping complex. On a consideration of the materials before the court, it is felt that both the courts below have considered the matter in great detail and has taken relevant facts into consideration. There is nothing to show that the findings are either perverse or unwarranted R.S.A No.424 of 2010 7 by the evidence on record. This Second Appeal is dismissed. P.BHAVADASAN, JUDGE ma R.S.A No.424 of 2010 8