IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 RSA.No. 618 of 2008() --------------------- AS.103/2002 of PRL.SUB COURT,TRIVANDRUM OS.1139/1998 of PRL.M.C.,TRIVANDRUM .................... APPELLANT/ APPELLANT/PLAINTIFF --------------------------------------- KUNJI, DHANYA BHAVAN, KALLUVILA PUTHENVEEDU, KALLAMPALLY, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. SRI. V.P.K.PANICKER RESPONDENT/RESPONDENT/ DEFENDANT ------------------------ JAYAMOHANAN NAIR, KUNNATHUVILAKATHU MELE PUTHEN VEEDU, MAVARATHALAKONAM, ULLOOR VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.618 of 2008 --------------------------------------- Dated this 17th day of March, 2010 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Thiruvananthapuram in A.S.No.103 of 2002 refusing to interfere with judgment and decree of Principal Munsiff, Thiruvananthapuram dismissing O.S.No.1139 of 1998 filed by appellant/plaintiff. That is a suit for prohibitory injunction to restrain respondent/defendant from trespassing into the suit property and opening a new pathway. According to the appellant she purchased 26 cents as per assignment deed No.1236 of 1960 and out of the said 26 cents, settled 19 cents in favour of her children. Plaint A schedule property is the remaining 7 cents situated towards north western portion of the said 26 cents. There is a pathway having width of 6 links along the northern side of the suit property. Respondent has 14 cents towards south of plaint A schedule belonging to the appellant. According to the appellant the latter is gaining access to his property from the public road on the south. He attempted to trespass into the suit property and open up a new pathway which is sought to be prevented by the process of court. Respondent resisted the suit and made a counter claim. According to the respondent, he has only 7 cents of land and has no access from the southern side. On the other R.S.A.No.618 of 2008 2 hand, only access to his property is along the pathway on the western portion of the suit property originating from lane on the north. That pathway has width of 3 feet. Property of respondent is described in the counter claim as A schedule and the disputed way along the west of the suit property is the B schedule. It is also the contention of respondent that electric, water, telephone connection have been drawn to his house through the disputed pathway. Courts below from the evidence on record found in favour of respondent, dismissed the suit and allowed the counter claim. First appellate court has confirmed that finding, judgment and decree. Hence the second appeal at the instance of appellant/plaintiff. Substantial questions of law urged for decision are whether there should have been a declaration prayed for by the respondent before appellant is restrained by way of prohibitory injunction, whether respondent was able to prove right of easement through the property and whether courts below are legally justified in disallowing relief to the appellant. It is contended by learned counsel that there is no evidence to show that the disputed pathway goes along property of appellant and that there is no evidence of existence of pathway as claimed by the respondent. 2. What is prayed for by the appellant is a decree for prohibitory injunction which is a matter within the discretionary jurisdiction of the court of course to be exercised in accordance with sound judicial principles. Appellant came with a case that access for R.S.A.No.618 of 2008 3 the respondent is from the south of his property and that respondent has no right or interest in the suit property. Her further case is that respondent attempted to cut open a new pathway through the suit property. Appellant did not go into the box and instead her power of attorney holder gave evidence as PW1, of course asserting the averments in the plaint on behalf of the appellant. It came in evidence that on the immediate south of the property of appellant is the property belonging to her son and that in respect of the pathway lying north-south along western side of property of the son of appellant, respondent had filed O.S.No.1102 of 1996 against interference with his right of access and got a favourable decree. It is not disputed that the said decree has become final. DW2 is the Advocate Commissioner in that case who proved Ext.B7, copy of the report submitted by him. PW2, Advocate Commissioner inspected the suit property and submitted Ext.C1, report. Evidence of respondent is that he has been gaining access to his property from the lane on the north of property of the appellant through counter claim B schedule pathway lying along the western side of the suit property as well as the property of the son of appellant situated on its further south. There is no evidence to show that respondent has any other means of access to his property. In fact PW1 also stated that on the south of property of respondent is a private property and there is no public way on the south of property of respondent as pleaded by the appellant. Ext.B2 is the copy of R.S.A.No.618 of 2008 4 assignment deed in respect of the property on the south of respondent which refers to the counter claim B schedule pathway from the north western corner of the 12 cents to the property acquired as per Ext.B2. Thus, existence of counter claim B schedule pathway is established as rightly found by the courts below. One contention is that it is not shown that the said pathway formed part of the property of appellant and there is no evidence regarding right of the respondent over the said pathway. Assuming that respondent has not established any right of easement over the disputed pathway, existence of that pathway and its user by the respondent since long is proved. That is not something which appellant admitted in the plaint and instead she denied the existence of such a pathway. She has no case there is a pathway but it lies beyond her property. Her case that respondent is gaining access from the south is found against. There was also no evidence to show that respondent attempted to trespass into the rest of the property belonging to appellant and cut open a pathway. It is not the requirement of law that a right of easement has to be declared before relief of injunction is granted. Denial of existence of the pathway on the western side of suit property which is proved to be a reality, gave sufficient apprehension for respondent as to the intention of appellant to destruct his user of the said pathway. Viewed in that line, even if it is assumed that the respondent has not proved any right of easement over the disputed pathway, that is not a ground to interfere with the R.S.A.No.618 of 2008 5 concurrent finding entered by the courts below and the judgment and decree that followed. On the facts and circumstances of the case I am satisfied that no substantial question of law is involved. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/