IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 RSA.No. 392 of 2009() --------------------- AS.121/1998 of SUB COURT, TIRUR OS.175/1992 of MUNSIFF-I-MAGISTRATE COURT,PONNANI .................... APPELLANTS/APPELLANTS 3, 5 AND 10/DEFENDANTS 3, 5 AND 6: -------------------- 1. KUNHIKUTTAN, S/O. MENATH VELU, PALLIKKARA AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DIST. 2. VASUDEVAN, S/O. MENATH VELU, PALLIKKARA AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DIST. 3. THAMU, S/O. PALLATHU ETTIYOORAN, PALLIKKARA AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DIST. BY ADV. SRI.SAJU.S.A RESPONDENT(S): RESPONDENTS 1,3 & 4 /PLAINTIFF & DEFENDANTS 7 & 8 ----------------------------------------------------------------- 1. MADHAVAN, S/O. THIRUMANGALATHU VELAPPU, PALLIKKARA AMSOM AND DESOM, PONNANI TALUK, MALAPPURAM DIST. 2. PARU, D/O. MECHINATH VELU, PALLIKKARA AMOSOM AND DESOM, PONNANI TALUK, MALAPPURAM DIST. 3. BASKARAN, S/O. PARU, PALLIKKARA AMSOM AND DESOM, PONNANI TALUK,MALAPPURAM DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2009, ALONG WITH RSA NOS. 979/2009 AND 1188/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.Nos.392, 979 & 1188 of 2009 -------------------------------------- Dated this the 19th day of November, 2009. JUDGMENT These Second Appeals arise from common judgment and decree of learned Sub Judge, Tirur in A.S.Nos.121 of 1998, 123 of 1998 and 122 of 1998 arising from common judgment and decree of learned Munsiff-Magistrate, Ponnani in O.S.Nos.175 of 1992, 203 of 1992 and 205 of 1992. The dispute is concerning width of the disputed pathway. Courts below concurrently found that the width is 5.5 to 6 feet. O.S.No.175 of 1992 has been decreed while the other suits were dismissed. Defendant Nos.1, 5 and 6 in O.S.No.175 of 1992 , plaintiff in O.S.No.203 of 1992 and plaintiff No.3 in O.S.No.205 of 1992 have preferred these Second Appeals, respectively. Parties are referred to as plaintiff and defendants as in O.S.No.175 of 1992 (from which R.S.A.No. 392 of 2009 arises). 2. Plaint A schedule property in O.S.No.175 of 1992 belonged to Menath Arumughan as per assignment deed dated 9.1.1968 and that was purchased by the plaintiff. He got purchase certificate from the Land Tribunal. Plaint B schedule is the disputed way which the plaintiff claimed, himself and his predecessors were enjoying for access to the plaint A schedule for more than 20 years, as of right, peacefully and openly without interruption and thus perfected right of easement by way of description. He claimed that the width of RSA Nos.392, 979 & 1188/2009 2 the way is 5 to 6 feet. Defendant Nos.1 to 5 have property on its northern side and there is a fence demarcating plaint B schedule and the said property of defendant Nos.1 to 5. Property of defendant No.6 is on south of plaint B schedule. That property is separated from the pathway by a ridge. Alleging interference by defendants to his user of plaint B schedule plaintiff filed O.S.No.175 of 1992. Defendant Nos.1 to 3 contended that plaint B schedule and other items belonged to Pallath Ittiyuran, father of defendant No.6 as per kanam assignment deed No.531 of 1914 and after his death there was a partition. The plaint B schedule was set apart to the share of defendant No.6. On the west of plaint A schedule there is paddy field. Defendants denied that plaintiff or his predecessor were using plaint B schedule pathway and alleged that they have alternative access to plaint A schedule. At any rate the width of plaint B schedule is only two feet and plaintiff attempted to widen the pathway. O.S.No.203 of 1992 is filed for a mandatory injunction to direct plaintiff in O.S.No.175 of 1992 to restore plaint B schedule pathway to its original state regarding width. Alleging trespass and widening of the pathway defendants filed O.S.No.205 of 1992 against plaintiff for recovery of possession of the alleged trespassed area. Courts below found against the contention of defendants (in O.S.No.175 of 1992), found from the evidence that width of the pathway is 5 to 6 feet and accordingly granted relief in O.S.No.175 of 1992. Consequently, the other suits were dismissed. First appellate court concurred with the finding of learned Munsiff-Magistrate. Hence these Second Appeals. RSA Nos.392, 979 & 1188/2009 3 3. Substantial question of law attempted to be urged in these appeals is whether under Section 22 of the Easements Act (for short, “the Act”) the right of way can be confined to a determinate part of the servient heritage without causing injury to the dominant owner. Learned Senior Advocate appearing for appellants in these Second Appeals contend that the said question was not considered by the courts below and it involved a substantial question of law. It is not very much in dispute that the disputed pathway is in existence since long. Ext.A1 is assignment deed of the year 1968. DW2 who is second defendant in O.S.No.175 of 1992 (plaintiff in O.S.No.205 of 1992) has given evidence that assignment of property was to the said Arumughan (predecessor-in-interest of the plaintiff) and that access to plaint A schedule may have been through the disputed pathway (plaint B schedule). Ext.A7 is kanam assignment deed in favour of Cheeru executed by Kali, predecessor-in-interest of defendant Nos.1 to 5. In Ext.A7 of the year 1932 the southern boundary is described as ‘edavazhi’. Thus it is clear that the disputed pathway is in existence from 1932 onwards. Ext.B1 is assignment deed of the year 1962 in favour of Velu and Ext.B2, assignment deed in favour of the assignor of the said Velu (these are the prior documents of Ext.A1). Ext.B2 is of the year 1949 and the southern boundary of the property referred to in Exts.B1 and B2 is the 'lane'. From Exts.B1 and B2 courts below found that disputed pathway is in existence in 1949 also. User of the pathway by plaintiff in O.S.No.175 of 1992 and his predecessors is practically admitted by DW2 when he said that access to plaint RSA Nos.392, 979 & 1188/2009 4 A schedule may have been through the disputed pathway. When such long user is proved, there is a presumption of user as of right to confer a prescriptive right. 4. What remained for consideration is only regarding width of the pathway which according to the plaintiff in O.S.No.175 of 1992 is 5 to 6 feet while the contesting defendants contend that width is only two feet. Advocate commissioners appointed in the respective cases inspected the property. Ext.C1 is the report and Ext.C2, the sketch submitted by advocate commissioner in O.S.No.175 of 1992. Commissioner inspected the property on the next day of institution of the suit. In Ext.C1, Commissioner reported that average width of the pathway is 5.5 to 6 feet though at one portion the width is upto seven (7) feet. Same commissioner inspected the property on 23.11.1994 as per order in O.S.No.205 of 1992. Exts.C3 and C4 are the report and plan. There also commissioner reported width of the pathway as 5.5 to 6 feet. It is true that at certain portions trunk of trees protruded into the pathway but that can only be on account of passage of time. In O.S.No.205 of 1992 commissioner visited the property on 17.11.1995 and submitted Exts.C5 and C6, report and plan. There, width of the disputed pathway at the western extremity is stated as 6.9 feet and eastern extremity as 4.9 feet. Appellate court considered the issue and found that average width of the pathway is 5.5 to 6 feet and that the pathway is clearly identifiable from the reports and sketches/plan prepared by advocate commissioners. These findings are based on evidence on record cannot be said RSA Nos.392, 979 & 1188/2009 5 to be perverse and hence present no substantial question of law. 5. So far the contention based on Section 22 of the Act is concerned, the servient owner can confine the right to a determinate part of the servient heritage but without detriment to the dominant owner. In this case, confinement of the pathway having width of 5.5. to 6 feet to any lesser width will be detrimental to the dominant owner, plaintiff in O.S.No.175 of 1992. Section 22 of the Act is clear and it does not require a debate in view of the settled position of law. On going through the judgments under challenge and hearing learned Senior Advocate appearing for the appellants/defendants I am satisfied that no substantial question of law is involved requiring this Court to admit these Second Appeals and issue notice to the respondents. Accordingly the Second Appeals are dismissed in limine. THOMAS P.JOSEPH, Judge. cks