IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 SA.No. 241 of 1998() -------------------- OS.128/1992 of MUNSIFF COURT, KARUNAGAPPALLY AS.52/1994 of DISTRICT COURT, KOLLAM .................... APPELLANTS/RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------- 1. ABOOBACKER KUNJU ALIYARU KUNJU, KALATHUM MURI, PADEETTATHIL, PAIKUZHY MURI, OACHIRA VILLAGE, KOLLAM. 2. ALIYARU KUNJU SHAMSUDHIN KUNJU OF DO. DO. REPRESENTED BY POWER OF ATTORNEY HOLDER SHARAFFUDIN KUNJU, OF DO.DO. 3. ALIYARU KUNJU SHARAFFUDIN KUNJU OF DO. DO. 4. ALIYARU KUJU ARIFFA KUJU OF DO. D. 5. ZEENATH BEEVI, D/O.ALIYARU KUNJU, KULATHUM MURI, OF DO. DO. BY ADVS. SRI.K.SUBASH CHANDRA BOSE SRI.V.PREMCHAND RESPONDENTS: --------------------- 1. ABDULKHADER KUTTY MOITHEEN KUNJU, KAVANA PADEETTATHIL, PAIKUZHY MURI, OACHIRA VILLAGE. 2. ISMAIL KUNJU S/O.ABULKHADER KUTTY OF DO. DO. 3. JUBAIRIA, W/O.ISMAILKUNJU OF DO. DO. 4. SUHURA BEEVI, W/O.RASHEED, KALATHUM MURI, VADAKKATHIL OF KAVANA PADEETTATHIL OF DO. DO. BY ADVS. SRI.P.G.PARAMESWARA PANICKER SRI.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK SA.No. 241 of 1998() ------------------------------ ORDER ON CMP.710/98 IN SA NO.241/1998 DISMISSED 25.02.2011 Sd/- P.BHAVADASAN , JUDGE / TRUE COPY / P.A. TO JUDGE VK P.BHAVADASAN, J. ------------------------------------- SA No.241 of 1998 ------------------------------------- Dated this the 25th day of February 2011 Judgment The plaintiffs, who were non-suited by the lower appellate court, are the appellants. 2. The suit was one for declaration and injunction, with regard to plaint C schedule pathway, which the plaintiffs allege to be running through plaint B schedule property owned by the defendants. 3. Plaint A schedule property claimed to belong to the plaintiff is on the southern side of the defendants' property. On the northern side of the defendants' property, there is a public road and the plaintiffs would say that they have access to the public road through the plaint C schedule pathway running through plaint B schedule property of the defendants. Since the defendants threatened to destroy the pathway and obstruct the use of the pathway by the plaintiffs, the suit was laid. SA 241/98 2 4. The defendants resisted the suit. They denied that there was any such pathway in existence as shown in plaint C schedule running through their property. They also contended that the plaintiffs have other means of access to their property. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined DWs1 and 2 and had Ext.B1 marked. The commissioner was examined as CW1 and Ext.C1 commissioner's report was marked. 6. On a consideration of the evidence in the case, the trial court came to the conclusion that there is possibility of a way having existed as claimed by the plaintiffs, running through plaint B schedule property owned and possessed by the defendants. However, the trial court found that there was no pathway having a width of 7 feet and by a generous decree, the prescriptive easement of SA 241/98 3 right of way over C schedule pathway at a width of 2 feet was declared. 7. The defendants carried the matter in appeal as AS No.52/94 before the District Court, Kollam. The lower appellate court, on a re-evaluation of the evidence, came to the conclusion that there was no evidence at all to show the existence of plaint C schedule pathway nor its use by the plaintiffs and accordingly, allowed the appeal. The judgment and decree of the trial court was reversed and the suit stood dismissed. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the lower appellate court is justified in setting aside the decree and judgment of the trial court without any justifiable reasons and grounds ? 2.Whether the plaintiffs succeeded in proving their prescriptive right of easement over C schedule pathway as contemplated in Section 15 of the Easement Act ? 3.Whether the lower appellate court is justified in SA 241/98 4 discarding the evidence of commissioner without setting aside Ext.C1 commission report on justifiable grounds and reasons ? 4.Whether the plaintiffs are entitled to use C schedule pathway as way of access to their A schedule property ? 5.Whether the plaintiffs are entitled to the injunctions prayed for ? 6.Whether a recent interruption, defeat the right of prescriptive easement ? 9. The learned counsel for the appellants placed considerable reliance on the commissioner's report and pointed out that the existence of the pathway as alleged in the plaint could be located by the commissioner and also there are other indications that there existed a pathway as alleged in the plaint. The learned counsel also pointed out that the attempt of the defendants to show that the plaintiffs had other means of access failed since the commissioner was unable to locate any alternate pathway. According to the learned counsel, the lower appellate court SA 241/98 5 was not justified in reversing the well considered trial court judgment wherein it was found that there was a pathway which had been interfered with by the defendants. 10. Though the arguments may look very attractive, on a closer scrutiny, they can be found to be without any basis whatsoever. The plaint allegation was that there did exist a pathway having 7 feet width, running through B schedule property shown as C schedule. The further allegation was that the defendants were making preparations to obstruct the use of the pathway and to destroy the pathway and that was the cause of action for the suit. It is interesting to note that almost along with the suit, a commission was taken out and Ext.C1 report was obtained. It is significant to notice that no sketch is appended to the commissioner's report. 11. The commissioner's report discloses that the commissioner was unable to locate any pathway as claimed in the plaint. However, the report says that the plaintiffs showed a place where some spadework has been SA 241/98 6 done where the soil was hard and he came to the conclusion that that must have been converted into the pathway in question. It is quite evident that on the date of inspection, which was soon after the filing of the suit, there was no pathway at all. True, there is a pathway as mentioned in the commissioner's report leading to the Panchayat Road towards north and ending on the boundary of the property of the defendants. But, that by itself, is not a ground to lead to the conclusion that the said road continues to run through the property of the defendants leading to the plaintiff's property. 12. The trial court was greatly impressed by the commissioner's report which, in fact, said that it is not possible to locate the pathway at all. One must remember here that the claim of easement is a precarious right. The pleadings should be definite and the pathway claimed in such cases must be properly described and must be in existence. Certain aspects have been highlighted by the trial court to come to the conclusion that there might have SA 241/98 7 been a pathway. It is interesting to note that the commissioner's report said that the defendants pointed out that the plaintiffs had an alternate pathway for access to their property. The defendants had filed their objections to the commissioner's report when the suit was included in the list. The trial court refused to accept the same stating that it was highly belated. 13. One fails to understand the reasonings given by the trial court to refuse to receive the objections to the commissioner's report. It was filed before the trial had commenced. Even without objection, the parties can show that the commissioner's report is wrong. The reasons given to refuse to receive the objections to the commissioner's report are totally unjust and unsupportable. The lower appellate court finds the possibility of existence of a pathway from the commissioner's report. It is clearly stated that no such pathway was in existence at all. The trial court has placed considerable reliance on the evidence of PW2 also. SA 241/98 8 14. Going by the pleadings in the plaint, the commissioner's report is quite contrary to the same. There is no averment in the plaint at all that the pathway had been tampered with as on the date of suit. The only allegation was that the defendants were making arrangements to form a pathway as on the date of the suit. Of course, the lower appellate court was in error in making the observation regarding the pathway that leads from the Panchayat Road to the property of the defendants. But, that does not make any difference. We are concerned with the existence or non-existence of C schedule pathway as alleged in the plaint. The evidence of its existence is far from satisfactory except the vague statement contained in the commissioner's report. 15. It was the above aspect that had persuaded the lower appellate court to hold against the plaintiffs. The lower appellate court has also found that there is want of evidence to establish use of the pathway for the statutory period. The findings of the lower appellate court are based SA 241/98 9 on appreciation of evidence and they are pure questions of fact. It cannot be said that the findings are perverse or unwarranted by the evidence on record. It is a plausible view. If that be so, no interference with those findings is called for. This second appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 241/98 10