IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 RSA.No. 588 of 2008() --------------------- AS.51/2006 of I ADDL.DISTRICT COURT, ERNAKULAM OS.281/1995 of SUB COURT, MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDATNS:- 1. MRS CHINNAMMA, AGED 62 YEARS, WIDOW OF SUNNY KATHANAR, RESIDING AT KAAVAATTUPATHYIL, FROM KOCHUPARAMBIL,KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE. 2. ASHA K. SUNNY, AGED 43 YEARS, WIFE OF T.M.RAJU, THEPPALAYIL HOUSE, KOTHAMANGALAM VILLAGE, NOW AT ABROAD, RESIDING AT PB NO. 550, DUBAI UAR. 3. BINDU K. SUNNY, AGED 39 YEARS, WIFE OF P.V. SANTHOSH, PARIYARATHU HOUSE, PATTAKULAM, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK. 4. SINDU K. SUNNY, AGED 37 YEARS, DAUGHTER OF LATE SUNNY KATHANAR, KOCHUPARAMBIL HOUSE, KIZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENT/RESPONDENT/PLAINTIFF: MR. MATHAI, AGED 70 YEARS, SON OF MATHAI, INCHAKKUZHY, THEKKEPUTHENPURAYIL, KI ZHAKOMBU KARA, KOOTHATTUKULAM VILLAGE, ERNAKULAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. =================== R.S.A.No. 588 of 2008 ==================== Dated this the 28th day of October, 2008. JUDGMENT Defendants 1 to 4 in O.S. No. 281 of 1995 on the file of the Sub Court, Muvattupuzha are the appellants in this Second Appeal. The said suit instituted by the respondent herein was one for a declaration of the plaintiff's title over the plaint schedule road and for a perpetual injunction restraining the defendants from trespassing into the plaint schedule road or from using it as a road after removing the iron gate put up at the beginning of the road from the panchayat road on the west. 2. The suit was resisted by the appellants/defendants contending inter alia that the plaint schedule road starting from the panchayat road on the west and reaching up to the diversion where the road takes a curve to north to reach the plaintiff's house was being used by the 1st defendant and her predecessors-in-interest peacefully and uninterruptedly, as of right for more than the statutory period and they have R.S.A. No. 588/2008 : 2: prescribed a right of easement falling under Section 15 of the Easement Act over the said segment of the plaint schedule road. A counter claim to that effect was also laid by the defendants. 3. On the side of the plaintiffs, the plaintiff was examined as PW1 and two other witnesses were examined as PWs 2 and 3. On the side of the appellants, the 1st defendant was examined as DW1 and her assignor under Ext.B1 sale deed of the year 1978 was examined as DW2. DW3 is the Advocate Commissioner who submitted Exts. C1 report, C1(a) plan, C2 report and C2(a) sketch. 4. The learned Sub Judge, after trial, as per judgment and decree dated 29.10.2005 decreed the suit and dismissed the counter claim. On appeal preferred by the defendants as A.S. No. 51 of 2006, the Additional District Judge, Ernakulam as per judgment and decree dated 20.02.2008 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this Second Appeal. 5. The learned counsel appearing for the appellants reiterated the contentions raised by the appellants before the R.S.A. No. 588/2008 : 3: courts below. He made the following submissions before me:- The fact that in the place of the plaint schedule road, there was originally an alley with mud wall on either side and known as 'thondu' in that area is borne out by the evidence of the plaintiff's witnesses as well as DW2, the assignor of the 1st defendant. DW2 who is the vendor under Ext.B1, has deposed before the court that it was both the plaintiff and DW2 who jointly levelled the mud walls and widened the 'thondu' to the present state in the form of a road in the year 1964 and this was to enable DW2 to use the road for reaching his property on the south. DW2 has been, however, disbelieved by the courts below on certain flimsy grounds. Similarly, the mere fact that the defendants' property touches the panchayat road by about 50 feet, is not a ground to reject the case of the defendants that they have perfected a prescriptive right of easement over the plaint schedule road. Ext. C2(a) plan clearly shows that the road leading to the defendants house takes a diversion from the plaint schedule road. The courts below went wrong in accepting the Commissioner's assessment of the age of the plaint schedule road as 10 to 15 years to R.S.A. No. 588/2008 : 4: discredit the plea of prescriptive easement set up by the appellants. 6. I am afraid that I cannot agree with the above submissions. The property of the plaintiff is situated to the north of the property of the defendants. There is a panchayat road by name Koothattukulam-Kizhakombu panchayat road proceeding along the western boundary of the property of the defendants. The said panchayat road which runs north-south takes a diversion towards west at the south-western corner of the plaintiff's property. From the said diversion of the panchayat road, there is a private road running northwards along the western boundary of the plaint schedule property. The plaint schedule road starts from the aforementioned diversion of the panchayat road and runs eastwards and after about 52 metres eastwards, it takes a turn to the north to eventually reach the plaintiff's house. About 3.12 metres to the west of the aforesaid bent, there is a road proceeding in the south-eastern direction from the plaint schedule road reaching to the house of the defendants. The case of the defendants is that the segment of the plaint schedule road R.S.A. No. 588/2008 : 5: starting from the panchayat road and reaching up to the diversion leading to the defendants' house was being used for more than 20 years thereby prescribing a right of easement over the plaint schedule road. In the first place, the Advocate Commissioner noted in Ext.C2 report that the age of the plaint schedule road is about 10 to 15 years only. This has been relied on by both the courts to hold that there could not be an uninterrupted user of the road by the first defendant and her predecessor-in-title for more than 20 years. That apart, the courts below have taken note of the fact that the boundary description of Ext.B1 which is the title deed of the defendants in respect of the southern property, does not show the existence of a road as the northern boundary. If as a matter of fact, the road has been in existence from the year 1964 onwards as contended by the defendants, one would have expected the road to figure as one of the northern boundaries in Ext.B1 sale deed dated 16.06.1978 as per which the defendants purchased the southern property into which the access is sought through the plaint schedule road. Apart from the interested testimony of the 1st defendant examined as R.S.A. No. 588/2008 : 6: DW1, the defendant examined as DW2 who is the vendor under Ext.B1 who was naturally interested in supporting the defendants. He has not been believed by the trial Judge who had the unique advantage of seeing the witnesses and assessing their credibility. The lower appellate court has also chosen not to take a different view with regard to the testimony of DW2. Under these circumstances, this Court sitting in the rarefied Second appellate jurisdiction will be loath to interfere with the findings recorded by the courts below with regard to the testimonial fidelity of DW2. (See Madhusudan Das v/s. Smt. Narayani Bai and others - AIR 1983 SC 114). The courts below have also noted that the property of the defendants which is to the south of the plaint schedule road is abutting the Koothattukulam-Kizhakombu panchayat road for about 50 feet in length. It is for having access to the said panchayat road that the defendants were claiming a right of way over the plaint schedule road admittedly belonging to the plaintiff. This was also a circumstance which weighed with the courts below to reject the counter claim made by the defendants. Such being the position, I see no ground to R.S.A. No. 588/2008 : 7: interfere with the concurrent findings recorded by the courts below. No question of law, much less any substantial question of law, arises for consideration in this Second Appeal. The questions of law formulated at page 13 of the memorandum of Second Appeal also do not arise for consideration. This Second Appeal is accordingly dismissed in limine. 7. Since the southern segment of the plaint schedule road was permitted to be used by the defendants during the pendency of the suit as well as the appeal, I accede to the request made on behalf of the appellants/defendants to permit the said user for three more months from today so that they can construct a new road from the panchayat road on the west for access to their house. The learned counsel for the caveator objected to the request made on behalf of the appellants. But having regard to the fact that the appellants were permitted to use the plaint schedule road during the pendency of the suit as well as the appeal, I see no reason why they should not be permitted to use the plaint schedule road for three more months, provided they file an undertaking before the trial court to the effect that they will stop using the plaint schedule R.S.A. No. 588/2008 : 8: property on the expiry of three months from today. The said undertaking in the form of an affidavit shall be filed within two weeks from today. Dated this the 28th day of October, 2008. V. RAMKUMAR, JUDGE. rv