IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 RSA.No. 202 of 2004 ------------------------ AS.2/1995 of ADDL.SUB COURT, IRINJALAKUDA OS.208/1993 of ADDL.M.C.,IRINJALAKUDA .................... APPELLANTS/APPELLANTS/DEFENDANTS: ---------------------------------------------- 1. FRANCIS, S/O. KAREPPERI LASSER, THOTIPPAL VILLAGE, MELANGU DESOM, MUKUNDAPURAM TALUK. 2. LASSER, S/O. KARIPPERI OUSEPH, MELANGU DESOM, THOTTIPPAL VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENTS: RESPONDENT/PLAINTIFF: ---------------------------------------------- LONAPPAN, S/O. NELLAYIPARAMBIL ANTHONY, THOTTIPPAL VILLAGE, MELANGU DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------- R.S.A. No 202 of 2004 ------------------------------------------------- Dated this the 21st May 2008 JUDGMENT Heard counsel for the appellants. 2. Appellants before me are the defendants in O.S. No 208 of 1993 on the file of Munsiff's Court, Irinjalakuda. The suit was decreed bythe trial court and defendants filed appeal before the first appellate court as A.S. No 21 of 1995 and that also was dismissed concurring with the findings of the trial court. It is against the said concurrent judgment and decree that this R.S.A has been filed. 3. The original plaintiff who was the first respondent in A.S. No 2 of 1995 passed away pending the said appeal and additional second respondent was impleaded and he is the respondent in this appeal. 4. The original first plaintiff filed O.S. No 208 of 1993 aforesaid for permanent prohibitory injunction as also for mandatory injunction in respect of B schedule pathway alleging inter alia, that she obtained plaint A schedule property under document No 617/75 of Sub Registry Office, Nellayi; that plaint B schedule property is a pathway having a width of two koles starting from the Panchayat road situated on the northern side of plaint A schedule and runs through the western and southern sides of plaint A schedule and reaches the Sasthamkadavu road on the southern side; that the RSA 202/04 2 said plaint B schedule pathway is an immemorial one and is used by the plaintiff and the public for the last more than 70 years and the defendants have no right to cause any obstruction to plaint B schedule pathway; that on 14.5.1992 defendants dug a drain on the middle of plaint B schedule pathway and on the intervention of the plaintiff they stopped digging and agreed to fill up the portion that was dug out, but have not done so and they are now taking steps to construct a compound wall along the said portion grabbing a portion of plaint B schedule pathway and adding it to their property on the west. Hence the prayer for a decree of permanent prohibitory injunction restraining the defendants from constructing compound wall in the plaint B schedule pathway and from destroying plaint B schedule pathway and for mandatory injunction directing the defendants to restore plaint B schedule pathway to its original position. 5. First defendant contended that he is not a necessary party to the suit as the property on the western side of plaint A schedule property belongs to his father. It was consequent on his contention that the second defendant was impleaded as additional second defendant. Additional second defendant contended that no pathway as described in plaint B schedule is in existence; that the said pathway has never been used by the plaintiff and the public and the pathway has thus become extinct by non user, that another RSA 202/04 3 pathway exists on the eastern side to reach Sasthamkadavu for the use of the plaintiff and that the drain he has made is not encroaching upon the pathway. He also contended that the plaintiff obstructed construction of a wall in his property due to enmity on account of dispute about the right to take usufructs from a tree standing along the border of plaint B schedule and prayed for dismissal of the suit. 6. The trial court considered the case in the light of the evidence adduced at trial which consisted of oral evidence of P.Ws 1 to 3 and D.W.1 and documentary evidence of Exts A1 to A4, Ext. B1 and Exts C1 and C1 (a) and decreed the suit restraining the appellants from constructing any wall in the plaint B schedule pathway and from destroying plaint B schedule pathway and from making any hindrance to the peaceful use of the said pathway by the plaintiff and her family members and also directing the defendants to fill up the drain within three months failing which allowing the plaintiff to approach the court for execution and to recover the expenses for such execution from the defendants. Appeal filed by the defendants before the first appellate court was dismissed concurring with the findings of the trial court and hence this appeal. 7. On a perusal of the records and the judgments of the courts below it is seen that in chief examination D.W.1 has admitted that Ext A3 was RSA 202/04 4 executed by none other than his mother. According to him, boundaries described to plaint A schedule property in Ext A3 are correct. On the basis of the said admission as well as the oral testimony of P.Ws 1 to 3 and documentary evidence especially Exts A1 and A3, the trial court found that plaint B schedule pathway exists as alleged by the plaintiff and that it is not liable to be interfered with. P.W.3 the Commissioner has deposed that though there is no clear and well defined boundaries for plaint B schedule pathway, the pathway was found to be in existence. The court below also found that inasmuch as it is alleged that plaint B schedule is a public pathway in existence from time immemorial there was no necessity for the plaintiff to allege and establish the nature of easement claimed. The courts below also observed that in the light of the contention of the defendants that there is no plaint B schedule pathway in existence and the said portion exclusively belongs to them and as Exts A1 and A3 evidence the existence of pathway as described in plaint B schedule and the witnesses corroborate the facts stated in Exts A1 and A3 and the defendants have not made any attempt worth mentioning to establish their contention that plaint B schedule pathway is part of their own property on the western side of plaint A schedule property belonging to the plaintiff and the very contention of the defendants also is that plaint B schedule pathway has become extinct RSA 202/04 5 due to non user, the existence of plaint B schedule pathway as alleged by the plaintiff stands established. 8. It is vehemently contended by the counsel for the appellants that the plaintiff has not alleged the nature of easement that they have over plaint B schedule pathway and that therefore even if it is admitted that there exists a pathway as described in plaint B schedule no relief should have been granted to the plaintiffs especially when the defendant had advanced claim of title over the said plaint B schedule portion. According to him, it is a substantial question of law to be agitated before this court and that therefore the R.S.A deserves to be admitted. It has already been found concurrently by the courts below and by this court in the discussions above that the alleged plaint B schedule exists as a public pathway even as admitted by the defendant's mother in Ext A3. Hence when the plaintiff has advanced claim for injunction restraining the defendants from reducing any portion of plaint B schedule pathway to their possession putting up boundary wall enclosing portions thereof along with their property, it is futile to contend that the plaintiff has to allege and establish the nature of easement claimed. There is no question of alleging the nature of easement when according to the plaintiff the pathway is a public pathway. For the mere fact that the defendants have contended that plaint B schedule pathway RSA 202/04 6 is a portion of their property without any evidence to substantiate that contention, the plaintiff could not have be held not entitled to any relief and the contention advanced by the counsel for the appellants is not of any merit. There is no scope for interference with the concurrent findings of the courts below. The second appeal is thus devoid of merit as there is no question of law arising for decision and much less any substantial question of law. This R.S.A is hence dismissed in limine refusing admission. Sd/- K.P.BALANCHANDRAN Judge 21/05/08 en [true copy]