IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 RSA.No. 420 of 2011() --------------------- AS.34/2005 of DISTRICT COURT, KALPETTA OS.295/1993 of MUNSIFF COURT, KALPETTA .................... APPELLANT/PLAINTIFF --------------------------------------- M.C.KUNJUMMEN, S/O.LATE SRI.CHERIYAN, AGED 73 YEARS, RETIRED AUDITOR RESIDING AT SALEM HOUSE, MEENANGADI P.O., SULTHANS BATHERY TALUK, WAYANAD DISTRICT. BY ADV. SRI.PHILIP MATHEW RESPONDENT(S): DEFENDANTS ------------------------- 1. RAV.FR.P.C.MICHEL COR EPISCOPA, AGED 72 YEARS, VICAR, ST.PETER'S & PAUL'S JACOBITE CATHEDRAL, PULLIATEL, MEENANGADI P.O., SULTHANS BATHERY TALUK, WAYANAD - 673 591. 2. K.V.JOHN, AGED 67 YEARS, KOZHIYALIL HOUSE, TRUSTEE, ST.PETER'S & PAUL'S JACOBITE CATHEDRAL, RESIDING AT KUMBLERI P.O., MEENANGADI P.O., SULTHANS BATHERY TALUK, WAYANAD - 673 591. 3. DR.MATHEW THOMAS, AGED AND FATHER'S NAME NOT KNOWN, BABY'S CLINIC, MEENANGADI, MANAGER, ST.PETER'S CATHEDRAL, MEENANGADI, SULTHANS BATHERY TALUK, WAYANAD - 673 591. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.420 of 2011 ............................................ DATED THIS THE 21st DAY OF OCTOBER, 2011 JUDGMENT Plaintiff in O.S.295 of 1993 on the file of Munsiff Court, Kalpetta is the appellant. Respondents are the defendants. Suit was filed for a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint C schedule property and recovery of possession of plaint C schedule property from respondents by a mandatory injunction directing them to remove the compound wall on the northern side of the property and filling up the cut portion to its original state. Appellant would contend that he is the absolute owner of plaint A, B and C schedule properties under Ext.A1 sale deed dated 11.3.1968 and at the time of purchase of the properties, plaint B schedule pathway was having a width of 3 feet which has been expressly mentioned in the schedule to the document and there were trenches on both sides of the pathway also and after purchase of the property, appellant filled the trenches and made a way to a motorable road and is using it as a road for transport RSA 420/2011 2 of manure into the plaint A schedule property and for taking the yield out of the property and this was continuing for the last 26 years and thereby appellant has perfected a right of easement by prescription over plaint C schedule property. It was contended that respondents are managing the affairs of the Church and on 16.8.1991, they trespassed into the plaint C schedule property and started construction of a compound wall reducing the width of the pathway to three feet and appellant approached Meenangadi police and thereafter Sub Divisional Magistrate and the Sub Divisional Magistrate initiated proceedings and second respondent representing the Church submitted that they were ready to deliver a portion of the property for the road but they did not do so and therefore appellant instituted the suit. 2. Respondents resisted the suit contending that appellant has no title to the plaint C schedule property and the description of plaint C schedule property is not correct and there is no separate plaint B schedule property as alleged and appellant is not entitled to the decree sought for as appellant has no right of easement over plaint C schedule property. 3. Learned Munsiff on the evidence of PWs 1 and 2, DW1 RSA 420/2011 3 and Exts.A1 to A8, B1 to B8 and C1 to C6 dismissed the suit holding that appellant has not established his title to the plaint B schedule property or a right of way by easement of prescription over plaint C schedule property and therefore he is not entitled to the decree sought for. Appellant challenged the decree before District Court, Wayanad in A.S.34 of 2005. Learned District Judge, on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. On hearing the learned counsel as it was found that no substantial question of law was involved, as requested by the learned counsel, appeal was sent to High Court Permanent Lok Adalath for settlement. The attempt was futile. The appeal was returned back as the matter could not be settled. The counsel appearing for appellant was heard once again thereafter. 5. Appellant is claiming title to the plaint A and B schedule properties and a right of easement over plaint C schedule property. The title of the appellant to plaint A schedule property is not disputed. But rights over plaint B and C schedule properties are disputed. Respondents are not disputing the fact that RSA 420/2011 4 appellant is having a right to use 3 feet width pathway. Learned Munsiff and learned District Judge on proper appreciation of the evidence entered a factual finding that appellant has not established the identity and title to the plaint B schedule property. That factual finding cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. Though appellant claimed that he had filled up the trenches on either side of plaint C schedule property and thereby widened plaint C schedule way into a road and thereby established a right of easement by prescription over the road, courts below on the evidence found that appellant did not establish that fact. On going through the judgments of the courts below, that factual finding entered into by the courts below, based on evidence is proper. In such circumstances, as no substantial question of law is involved in the appeal, it is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk