IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 SA.No. 256 of 1997(E) --------------------- AS.59/1992 of ADDL. DISTRICT COURT, N. PARAVUR OS.175/1988 of MUNSIFF COURT, N. PARAVUR .................... APPELLANTS (APPELANTS 1 TO 4-PLAINTIFFS 1 TO 4): -------------------------------------------------------------------------------- 1. RADHAKRISHNA MENON, SON OF JANAKI AMMA, MUNDIYATH, VADAKKUMPURAM KARA, CHENDAMANGALAM VILLAGE. *2. MALATHIYAMMA, WIFE OF CHANDRASEKHARA MENON, DO. DO. *(DIED) 3. RAJEEV MENON, SON OF CHANDRASEKHARA MENON, DO. DO. 4. RAJESH MENON, SON OF CHANDRASEKHARA MENON, DO. DO. * IT IS RECORDED THAT THE 2ND APPELLANT HAS EXPIRED AND HER LEGAL REPRESENTATIVES ARE APPELLANTS 3 AND 4 IN THE PARTY ARRAY. BY ADV. SRI.T.K.VENUGOPALAN RESPONDENTS (RESPONDENTS & 5TH APPELLANT- DEFENDANTS 2 TO 5 & 6TH PLAINTIFF): ----------------------------------------------------------------------------- 1. GOPALAN NAIR, SON OF KRISHNAN NAIR, VADAYIL, RESIDING AT ERUMALI VEEDU, KIZHAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE. 2. SATHI DEVI, D/O.LAKSHMYKUTTY AMMA, DO. DO. 3. RADHA DEVI, D/O.LAKSHMYKUTTY AMMA, DO. DO. 4. PADMINI, D/O.THANKAMMA, DO. DO. 5. MOHANAN, SON OF NARAYANAN, THOTTAPPILLY PARAMBIL, KIZHAKKUMPURAM MURI, CHENDAMANGALAM VILLAGE. R4 BY ADV. SRI.S.SHYAM. R1 BY ADV. SRI.PHILIP M.VARUGHESE. BY ADV. SRI.LETTULAL T.G.THUNDATHIL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 256 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2011. JUDGMENT Slapped with the concurrent findings against them, the plaintiffs in O.S. 175 of 1988 before the Munsiff's Court, North Paravur, have come up before this court. 2. The suit was one in respect of a pathway on the western side of the property owned by the defendants. According to the plaintiffs, plaint A and B schedule properties lie contiguously without any demarcation. The plaintiffs claimed that the pathway is in existence from time immemorial and they have been used it continuously as a matter of right. The Thanneerpanthal, to which the way led and the way was made use of by public also to reach Thanneerpanthal. The plaintiffs laid claim to the pathway on the basis of customary, prescriptive and easement by grant. S.A.256/1997. 2 3. The suit was resisted by the defendants. They pointed out that there is no pathway as alleged and the public has never used any portion of their property as a pathway. The plaintiffs have direct access to the public road and they have not used the pathway as alleged in the plaint, apart from the fact that there is no such pathway. They prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the court below. The plaintiffs examined P.Ws. 1 to 4 and had Exts.A1 to A9 marked. Exts.C1, C2 and C2(a) are the commission reports and plan. The trial court came to the conclusion that there is a pathway and there was nothing to show that it was running through the property owned by the defendants. It was also found that the plaintiffs were unable to establish any right over the pathway. Accordingly the suit was dismissed. S.A.256/1997. 3 5. The plaintiffs carried the matter in appeal as A.S. 59 of 1992 before the District Court, North Paravur. The appellate court, on an independent evaluation of the evidence concurred with the trial court and dismissed the appeal. Hence this Second Appeal. 6. Notice is seen issued on the following questions of law: “1. Whether on the facts and circumstances of the case, the claim of customary right of easement and an easement by grant or prescription or a pathway is maintainable? 2. Whether such claims are totally inconsistent so as to deprive the right of way claimed by the plaintiff? 3. Whether on the facts and circumstances of the case the existence of an alternate way will destroy the right of easement prescribed by the plaintiff over the full statutory period? 4. Whether the claim of customary right and easement by prescription or grant co-exist?” S.A.256/1997. 4 7. Learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in non-suiting the plaintiffs merely on the ground that there are other means of access to the plaint schedule property. The right pleaded was one of customary easement, prescriptive easement and easement by grant. Alternate means of access is not a hindrance to the claim so made by the plaintiffs and it is pointed out that the judgment of the lower appellate court is unsustainable in law and on facts. As regards the trial court judgment, it is pointed out that the trial court has infact found that there does exist a way, but has erred in observing that the plaintiffs have not established any right to use the same. 8. Though the arguments may look attractive, they are without any basis whatsoever. First of all, the claim is based on prescriptive right of easement, customary easement and easement by grant. It is well settled that all the three cannot co-exist. Along with this, there is also the S.A.256/1997. 5 claim that public are using the pathway. It is well settled that in a case of easement, the pleadings have to be specific, so that the opposite party can meet the specific case put forward by the plaintiffs. A reading of the evidence of P.W.1 would make it clear that he was not sure about the nature of right put forward by the plaintiffs. Moreover, on going through the pleadings and the evidence, it can be seen that the way infact passes in between the property of one Divakara Pai and the property of the first defendant and not as stated by the plaintiffs. The lower appellate court held that there is no evidence to indicate that the property runs through the property owned by the defendants. The Advocate Commissioner was also unable to locate the pathway. None of the ingredients necessary to attract the various easements claimed by the plaintiffs is either admitted or proved in the case. The courts below were therefore justified in dismissing the suit. S.A.256/1997. 6 No question of law, much less any substantial question of law arises of consideration in this second appeal. This Second Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.