IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 RSA.No. 488 of 2010(G) --------------------------------- [AS.NO. 19/2008 OF VI ADDL.DISTRICT COURT, ERNAKULAM, OS.NO.829/2005 OF II ADDL.MUNSIFF'S COURT, ERNAKULAM] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- E.J.SIMON, S/O.JOSEPH,AGED 59 YEARS, ELENJIKKAL HOUSE,CC-44/1174,PUTHIYA ROAD, KALOOR DESOM,ELEMKULAM VILLAGE,KANAYANNOOR TALUK, COCHIN-17. BY ADV. SRI.SHAJI P.CHALY. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- M/S.TRACO CABLES LTD, A COMPANY INCORPORATED UNDER THE INDIAN COMPANIES ACT,HAVING ITS HEAD OFFICE AND REGISTERED OFFICE AT ERNAKULAM NORTH,THIRUVANKULAM VILLAGE, KANAYANNOOR TALUK,REPRSENTED BY ITS MANAGING DIRECTOR. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.488 of 2010-G ------------------------------------- Dated 3rd June 2010 Judgment The plaintiff, who was non-suited by the Court below and whose appeal was dismissed by the lower Appellate Court, has come up in Second Appeal before this Court. 2. The suit relates to a pathway scheduled to the plaint as C schedule, which runs from the property of the defendant. The plaintiff contended that he was using the said pathway. The defendant resisted the suit, pointing out that there is no such pathway in existence and that the plaintiff has not used any portion of his property as a pathway. It was contended that the property of the defendant is situated at a much higher level and there is no pathway as alleged by the plaintiff. 3. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of RSA 488/10 2 PWs 1 to 4 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants examined DW1 and had Exts.B1 to B8 marked. Exts.C1 and C2 Commissioners' reports and C2(a) rough sketch were also marked. 4. The Trial Court, on an evaluation of the evidence on record, came to the conclusion that the plaintiff was unable to establish that there was a pathway and accordingly non-suited the plaintiff. An appeal was filed by the plaintiff against the judgment and decree of the Trial Court as AS No.19/08 before the District Court, Ernakulam. The first Appellate Court, on an independent evaluation of the evidence, came to the very same conclusion as that of the Trial Court and dismissed the appeal confirming the judgment and decree of the Trial Court. 5. The learned counsel for the appellant pointed out that the courts below have been guided by the photographs produced and has omitted to appreciate the RSA 488/10 3 Commissioner's report. According to the learned counsel, the Commissioner's report would clearly show that the pathway shown as C schedule does exist and the plaintiff has been using the same for a long time. According to the learned counsel, the evidence has not been appreciated by the courts below in the proper perspective and that has resulted in miscarriage of justice. 6. The above contentions are without any basis whatsoever. Admittedly, PW2 was owning the entire property including that of the plaintiff before 1998. Then, the property was having road frontage, which is a fact admitted by PW2 himself. It follows therefore, that the predecessor in interest of the plaintiff, namely, PW2 had no occasion to use any portion of the property owned by the defendant as a pathway. As per Annexure A1 assignment deed dated 25.06.1998, PW2 Kuriakose had assigned a portion of the property to Smt.Beena George. It is from Smt.Beena George that the plaintiff has come to acquire the property as per Ext.A2 dated 7.1.2002. As already RSA 488/10 4 noticed, PW2 has no case that he had ever used any portion of the property owned by the defendant as a pathway. The plaintiff comes into the property in 2002. Even assuming the pathway came into existence in 1998 for the first time, when Beena acquired the property from PW2, it has been in use only from then onwards. 7. The lower courts have also noticed the level difference and the lie of the properties. The claim of the plaintiff that the courts below have been guided by the photographs, does not appear to be correct. In fact, the Trial Court has considered the matter in considerable detail and has considered the entire evidence available before it. The specific finding is that it is impossible to come to the conclusion that the entire 96 cents of property which was earlier possessed by PW2 would have access through the plaint C schedule pathway. The finding is that the said property had well defined pathway for access to the said property. As already noticed, the lower Appellate Court has independently considered the evidence and came to RSA 488/10 5 the very same conclusion as that of the Trial Court, finding that there is no such pathway as shown in plaint C schedule. This is a finding of fact and no question of law arise for consideration in this appeal. This appeal is devoid of any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta RSA 488/10 6