IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 RSA.No. 809 of 2011() --------------------- AS.163/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.410/1985 of I ADDL.MUNSIFF COURT.,ERNAKULAM .................... APPELLANT/PLAINTIFF --------------------------------------- H.BALAKRISHNA KAMATH,S/O.HARI N.KAMATH, R/AT HOUSE NO.39/2161.NETTEPADOM ROAD, ERNAKULAM,KOCHI-16. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): --------------- 1. KANMANI,D/O.NARYANI ALIAS AMMINI, R/AT HOUSE NO.27/2849,NEAR NSS KARAYOGAM, K.P.VALLON ROAD,KADAVANTHARA PO,KOCHI-20. 2. SIVAN,S/O.NARAYANI @ AMMINI, R/AT HOUSE NO.27/2849,NEAR NSS KARAYOGAM, K.P.VALLON ROAD,KADAVANTHARA PO,KOCHI-20. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.809 of 2011 ............................................ DATED THIS THE 8th DAY OF NOVEMBER, 2011 JUDGMENT Plaintiff in O.S.410 of 1985 on the file of Munsiff Court, Ernakulam is the appellant. Defendants are the respondents. Suit was filed for permanent prohibitory injunction restraining respondents from making any portion of the plaint schedule property as a pathway or removing sand from the property or doing mischief or committing encroachment in the plaint schedule property. Appellant contended that plaint schedule property belongs to him under Ext.A1 sale deed and respondents have no right to interfere with his peaceful possession of the property. 2. Respondents resisted the suit contending that they have a right of way over the northern portion of the plaint schedule property. It was contended that there is no other way available to their property and the only way available to their property is through the northern portion of the plaint schedule property and they have have been using that way openly, uninterruptedly and without any obstruction for the last several years, even before RSA 809/11 2 the appellant obtained the property and hence appellant is not entitled to the decree sought for. 3. Learned Munsiff originally dismissed the suit. Though it was challenged in A.S.87 of 1990, appeal was also dismissed. It was challenged before this court in S.A.861 of 1993. This court found that though courts below upheld the claim of right of way raised by the respondents, the character of the right was not decided and though it was contended that no other way is available, there was no plea that there was a splitting up of the tenament and therefore respondents are entitled to a right of way by easement of necessity. It was also found that even the claim for right of way by easement of prescription was not considered by the courts below and neither the trial court nor the first appellate court entered a finding on that question. The second appeal was allowed and the suit was remanded to the trial court for fresh disposal to consider whether respondents have a right of way either by easement of necessity or prescription. Learned Munsiff thereafter, finding that respondents have a right of way by easement of prescription, dismissed the suit holding that appellant is not entitled to the decree sought for. Appellant RSA 809/11 3 challenged the decree before District Court, Ernakulam in A.S.163 of 2008. Learned Additional District Judge, on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that though a right of way by easement of prescription was upheld by the courts below, there is no pleading regarding the ingredients of a right of easement by prescription as provided under Section 15 of Indian Easement Act. The argument is that there is no plea that respondents have been using the way for more than 20 years prior to the institution of the suit and therefore they are not entitled to the right of way by easement of prescription. Learned counsel also argued that on the evidence, courts below were not justified in upholding the right of way. Learned counsel finally submitted that when a decree for injunction was sought against respondents from removing the sand or doing mischief in the plaint schedule property, dismissing the suit without considering that prayer is not sustainable. 5. On hearing the learned counsel, I do not find any RSA 809/11 4 substantial question of law involved in the appeal. The suit was originally dismissed by the trial court and it was confirmed by the first appellate court and challenged before this court in S.A.861 of 1993. This court remanded the suit back to the trial court to consider the character of the right of way claimed by respondents, finding that courts below did not enter a finding on the question whether respondents have a right of way by easement of prescription or easement of necessity. The appellant had no case in S.A.861 of 1993 that he is entitled to a decree for injunction restraining the respondents from removing the sand or doing mischief. The dispute was only with regard to the claim for a way raised by respondents. Therefore, the order of remand was only to consider the question whether respondents have a right of way either by easement of necessity or that of prescription. 6. Trial court, after remand found that there was no case for the respondents for a right of way by easement of necessity and the claim is only for a way by easement of prescription. Learned Munsiff found that the claim is that respondents have been using the way through the northern portion of the plaint schedule property openly, peaceably and without interruption for the last RSA 809/11 5 several years and they have been so using the way even before the appellant purchased the property. On the evidence, it was found that respondents have been using the way as of right, openly peaceably and without interruption for more than 20 years and therefore appellant is not entitled to the decree for injunction restraining respondents from using a portion of the plaint schedule property as a way. First appellate court, on re- appreciation of the evidence, entered a factual finding that there is a definite pathway lying east-west on the northern portion of the plaint schedule property and it is an old way and in continuation of the same pathway, there is a pathway running towards north through the eastern boundary of C.M.Joseph to reach the slab put across the brook situated in the eastern side of C.M.Joseph's property. It was also found that appellant had himself admitted that respondents were using the way through the property of C.M.Joseph to reach the slab situated on the eastern side of the property of C.M.Joseph even before he obtained the property. It was also found that there was no case for the appellant that the slab put across the brook on the eastern side of C.M.Joseph's property was recently put up or was RSA 809/11 6 not existing 20 years prior to the institution of the suit. It was also found that the admission of the appellant establish that respondents have been using that way to reach the eastern slab. It was in the light of these factual findings, first appellate court confirmed the finding of the trial court. In the light of these factual findings, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk