IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 RSA.No. 1276 of 2009() ---------------------- AS.9/2008 of II ADDL.SUB COURT,ERNAKULAM OS.571/2001 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTs/APPELLANTS/PLAINTIFFS --------------------------------------------------- ULAHANNAN SKARIA, S/O. ULAHANNAN, KACHERIYIL HOUSE, NORTH PUNNAMATTOM, KADAVOOR VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.GEORGE JACOB (JOSE) SRI.MEREENA JOSEPH JOSEPH RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SHOLLY, S/O. LOUIS, CHUNDATTU, KULAPPURAM KARA, KADAVOOR VILLAGE. 2. SHIBU, AGED 35, S/O. LOUIS, CHUNDATTU HOUSE, NORTH PUNNAMATTOM, KULAPPURAM KARA, KADAVOOR VILLAGE. 3. MATHEW, PULIKATTIL HOUSE, NORTH PUNNAMATTOM, KULAPPURAM KARA, KADAVOOR VILLAGE. ADV. SRI.V.PHILIP MATHEW FOR R1 SRI.V.PHILIP MATHEW FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------- R.S.A.No.1276 of 2009 ------------------------------- Dated this the 29th day of July, 2010 JUDGMENT Aggrieved by the concurrent findings against him, the plaintiff has come up in appeal before this court. 2. The dispute relates to road which is shown as 'C' schedule. Plaint A schedule property according to plaintiff was purchased as per Ext.A1 dated 13.11.1973. 'B' schedule property was purchased as per Ext.A2 dated 12.3.1976. According to the plaintiff, there was pathway to the plaint A and B schedule properties, along the boundaries of the properties owned by Antony and Mariyam. The plaintiffs claimed that first plaintiff purchased the property having a length of 500 links and width of 13 links, adjacent to the pathway, in 1986. According to the plaintiff, the plaint 'C' schedule road was formed through the said property. The said property is in the absolute possession and enjoyment of the plaintiffs. It is the only means of access to the plaint A and B schedule property. The defendants, owners of the adjacent properties, have no manner of right over the plaint C schedule road. On 4.12.2001, the R.S.A.No.1276 of 2009 2 defendants attempted to reduce width of the plaint C schedule road by constructing a kayyala. The plaintiffs apprehend further attempts of trespass and hence the suit. 3. The defendants resisted this suit. According to them, there was a pathway in existence through the properties of the predecessors-in-interest of the defendants 1 and 3 which starts from Kavumpara Vadakke Punnamattam road and proceeds further towards north along the boundaries of plaint A and B schedule properties. It is being used by the public at large. As the plaintiffs wanted to take vehicles to their property, they had, along with the defendants 1 and 2, purchased some properties in 1986 in the name of plaintiffs. It was agreed that the defendants also will have equal right over the widened way. The width of the original pathway was 4 feet. The plaintiffs do not have any exclusive right over the widened pathway. The defendants are also using the said pathway, as they have got no other access to their properties. It was agreed that the defendants will also have equal right in the pathway. Pointing out that plaintiffs have no cause of action, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. Evidence consists of testimony of Pws.1 to 5 and marked Exts. A1 R.S.A.No.1276 of 2009 3 to A7. The third defendant was examined as DW1. Ext.C1 series are the report and sketch submitted by PW5 . 5. The trial court on the basis of commission report found that pathway belongs to defendants also. On an evaluation of evidence, the trial court was of the view that the attempt of the plaintiffs was to have exclusive right over the plaint 'C' schedule road. That was found to be impermissible by the trial court. The allegation that the defendants were trying to reduce the width of the pathway was found to be illogical and irrational. So the suit was dismissed. 6. The matter was carried in appeal as A.S.9 of 2008. The appellate court on consideration of the materials before it came to the identical conclusion and confirmed to the judgment and decree of the trial court. 7. The learned counsel appearing for the appellant contended the appellate court had not heard the counsel for appellant. It is also contended that pathway was purchased for the exclusive use of plaintiffs and defendants had no manner of right to use the same. Further it is contended that defendants have no right to reduce the width of the pathway. R.S.A.No.1276 of 2009 4 8. As regards the first contention,the appellate judgment of the lower court shows that the appeal was initially posted for hearing to 12.12.2008 after issuing notice to both sides. On that day respondents 1 and 3 alone appeared. On 7.1.2009 there was no representation for the appellant. Thereafter the counsel for the appellant did not appear before the court. On 28.2.2009 when the appeal was taken up for hearing the representation for adjournment on behalf of the defendant was made. It was disallowed. The matter was heard on 28.2.2009 and it was posted for judgment pronounced on 5.3.2009. 9. There is no merit in the contention that appellant counsel was not heard. Sufficient opportunities were given to them, they did not utilise the same. The matter was heard on 28.2.2009 . The judgment was pronounced only on 5.3.2009. If the appellants had a grievance that they were not heard nothing prevented them from seeking a reopening of the case for hearing. For the reasons best known to them they did not adopt that method. In the circumstances, there is absolutely no merit in the complaint now made. 10. Both the courts have concurrently found that a pathway had already existed and that was being used by the defendants. R.S.A.No.1276 of 2009 5 It is also found that the said pathway was widened by plaintiffs and plaintiffs have purchased the pathway. Both the courts below rightly found that the pathway purchased by them was the pathway used by the defendant in the suit and that by mere widening of the pathway rights of the defendant does not reduced or annulled and that it thereafter exclusively belongs to the plaintiffs. Both the courts below found that defendants have been using the pathway continuously for a long time. The findings are fully justified going by evidence on record. No error could be found in the conclusions drawn by the courts below. 11. Finally it was contended that defendants are trying to reduce the width of pathway by putting up a kayyala. It does not stand to reason to believe that defendants will try to reduce the width of pathway, when they actually lay claim to the widened pathway. The Second Appeal is without any merits and it is dismissed in limine . P.BHAVADASAN, JUDGE cms