IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 SA.No. 896 of 1996(F) --------------------- AS.66/1995 of I ADDL. DISTRICT COURT, PALAKKAD OS.47/1990 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------- 1. INHABITLANTS OF PUDUSSERY AMSOM, PALAKKALD TALUK, REPRESENTED BY VELUCHAMI, AGED 40 YEARS, S/O.PONNAN. 2. INHABITANTS OF PUDUSSERY AMSOM, PALAKKAD TALUK, REPRESENTED BY VELLAPPAN, AGED 55 YEARS, S/O.VELAYI. 3. INHABITANTS OF EDAPARAMBU, PUDUSSERI AMSOM, PALAKKAD TALUK, REPRESENTED BY CHANDRAN, AGED 45L; YEARS, S/O.ARMUGHAN ASARI. 4. INHABITANTS OF EDAPARAMBU, PUDUSSERI AMSOM, PALAKKAD TALUK, REPRESENTED BY VENUGOPALAN, AGED 35 YEAR4S, S/O.KRISHNAN. 5. INHABITANTS OF EDAPARAMBU, PUDUSSERY AMSOM, PALAKKAD TALUK, REPRESENTED BY MUTHU ASARI, AGED 45L; YEARS, S/O.CHELLA. 6. INHABITANTS OF VADAKKKADU, PALLATHERI AMSOM, PALAKKAD TALUK, REPRESENTED BY PONNANDAN, AGED 55 YEARS, S/O.VELAN. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENTS/RESPONDENTS/PLAINTIFFS: ---------------------- 1. MARUTHACHALAM, AGED 57 YEARS, S/O.RANGASWAMI NAICKER, RESIDING AT NILAYATHIRI, PUDUSSERY WEST VILLAGE, PALAKKAD TALUK. 2. RAJAN, AGED 29 YEARS, S/O.MARUTHACHALAM RESIDING AT NILAYATHIRI, PUDUSSERY WEST VILLAGE, PALAKKAD TALUK. 3. ANANDAN, AGED 26 YEARS, S/O.MARUTHACHALAM, RESIDING AT -DO- -DO- 4. SURESH, AGED 25 YEARS, S/O.MARUTHACHALAM, -DO- -DO- S.A.No.896/96 -2- 5. RAMESH, AGED 24 YEARS, S/O.MARUTHACHALAM, -DO- -DO- ADV. SRI.C.P.DAMODARAN NAYAR SRI.D.KRISHNA PRASAD SRI.JOJI VARGHESE FOR SRI.M.HARISHARMA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.896 OF 1996 ------------------------------- DATED THIS THE 20TH DAY OF MAY, 2010 JUDGMENT Defendants in O.S.No.47/90 on the file of the Munsiff's Court, Palakad are the appellants. The suit was filed for permanent prohibitory injunction restraining the defendants from destroying the fence, trespassing the plaint schedule properties and from interfering with the peaceful possession and enjoyment of the properties by the plaintiffs. The trial court decreed the suit. The decree and judgment passed by the trial court was confirmed in appeal. Hence, the second appeal. The parties hereinafter referred to are the plaintiffs and defendants as arrayed in the suit. 2. The plaintiffs are jointly holding the properties belonging to them. The properties mentioned as A, B and C schedule to the partition deed of 1973, produced as Ext.A1, are the plaint schedule properties. It is the case of the plaintiffs that -2- S.A.No.896/96 the defendants do not have any right, title or possession over the plaint schedule properties and that they apprehend trespass by the defendants and therefore the plaintiffs constrained to file the suit. 3. The defendants are representing the residents of Nilayathiri, Edaparamba and Vadakkekad localities. According to them, they are using the Kollangad burial ground and for the said purpose, the pathway situated through the plaint schedule properties is used by them and other residents of that locality for reaching upto the said burial ground for more than 50 years, continuously, openly, as of right and without any hindrance. The aforesaid pathway commences from the Suryachira road and goes along with the eastern side of the property belonging to Thankavelu before it reaches the plaint schedule properties. The defendant denied the allegations in the plaint and prayed for dismissal of the suit. 4. In support of the respective contentions of the parties, PW-1, PW-2 and Dws.1 to 3 were examined and Exts.A1 -3- S.A.No.896/96 to A5, B1 and C1 to C3 were marked. DW-3 is an other resident of Edaparamba. Dws. 1 to 3 tendered evidence supporting their case of user of the alleged pathway continuously, interruptedly and as of right. The Commissioner deputed by the court below filed Exts.C1 and C3 reports and Ext.C2 sketch. The Commissioner reported that there is an alternate pathway through the western side of the plaintiffs' house which reaches upto the burial ground. The defendants are claiming a right of way through the properties of Thankavelu, plaintiffs and Chamunni to reach upto the burial ground for carrying dead bodies. The Commissioner did not notice any such pathway having a uniform width of 10 feets, as contended by the defendants. The Commissioner also reported the existence of wide canal having 5 feet depth at the place where the alleged pathway commences from the Suryachira road. After examining the documentary evidence placed by the parties, the court below held that the defendants/appellants have not succeeded in establishing the -4- S.A.No.896/96 right of easement. In order to adjudicate the question as to whether the plaintiffs are entitled to the relief of injunction the trial court examined whether the defendants have a right of way through the plaint schedule properties as contended by them. The evidence adduced by the appellants/defendants was examined in detail by the trial court. The trial court concurrently held that the defendants have not succeeded in establishing their right of easement. The trial court observed that an attempt was made to make out a pathway through the plaint schedule properties. The trial court decreed the suit as prayed for and the same was confirmed by the Appellate Court. The questions agitated by the appellants were adjudicated by the courts below in the light of the materials on record. The questions were examined and the issues were answered based on the facts, evidence and circumstances. I do not find any ground to interfere with the judgment of the trial court or the Appellate Court. No question of law much less any substantial question of law arises -5- S.A.No.896/96 for consideration in the second appeal. In the result, the appeal is dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv.