IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 RSA.No. 580 of 2011() --------------------- AS.38/2003 of SUB COURT, MUVATTUPUZHA OS.805/1999 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/RESPONDENTS 2/9/2NDDEFENDANT: ------------------------------------------------------------ 1. P.N.RAGHAVAN, AGED 64, S/O.NANU, PUTHENVEETTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, PIN-686 662. 2. SOMAN, AGED 48, S/O.NANU, PUTHENVEETTIL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, PIN-686 682. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): APPELLANTS & RESPONDENTS 5,6,8/PLAINTIFFS: --------------------------------------------------------- 1. KRISHNAN, AGED 50, S/O.KUNJAN, THEKKUMCHERIL HOUSE, KAKOOR KARA, TIRUMARADY VILLAGE FROM KOOTHATTUKULAM VILLAGE, KOOTHATTUKULAM KARA, PIN-686 662. 2. RADHA, AGED 53, THEKKUMCHERIL HOUSE, MUNDAKKAL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, PIN-686 662. 3. MARIYAKUTTY, AGED 70, W/O.KUNJAIPU, MUNDAKKAL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, PIN-686 662. 4. JOHNY, AGED 40, S/O.KUNJAIPPU, MUNDAKKAL HOUSE, KAKKOOR KARA, THIRUMARADY VILLAGE, PIN-686 662 5. AMMINI, AGED 58, D/O.NANU, PUTHENVEETTIL KAKKOOR KARA, THIRUMARADY VILLAGE, PIN-686 662. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.580 OF 2011 ............................................ DATED THIS THE 28th DAY OF JUNE, 2011 JUDGMENT Second defendant in O.S.805 of 1999 on the file of Munsiff Court, Muvattupuzha is the appellant. Respondents 1 and 2 are the plaintiffs and other respondents, the other defendants in the suit. Respondents 1 and 2 instituted the suit seeking a decree for declaration of right of easement by prescription and prohibitory and mandatory injunction. Plaint A schedule property admittedly belongs to respondents 1 and 2 under Ext.A1 sale deed. Plaint B schedule property is the disputed pathway. Property of the appellant lies to the north of the property of respondents 1 and 2. Admittedly, there is a mud road to the north of the property of the appellant, which reaches the western public road. The disputed plaint B schedule way starts from the said mud road and proceeds towards the south and reaches plaint A schedule property. Respondents 1 and 2 would contend that the said way was having a width of 10 feet and respondents 1 and 2 and their predecessors have been using that way as of right and as an easement for more than 30 years openly, peacably, continuously, RSA 580/2011 2 uninterruptedly and they have thereby prescribed a right of easement by prescription. They would contend that O.S.620 of 1998 was instituted earlier and during the pendency of the suit, appellant and other defendants constructed a wall encroaching a portion of the way and thereby reduced the width of the way and they have no right to do so. Respondents 1 and 2 sought a decree for declaration of the right of way and also a mandatory injunction to remove the encroachment caused and for a permanent prohibitory injunction. Appellant along with first defendant had filed a written statement disputing the width of the way contending that it was having only a width of 4 feet. It was contended that the eastern boundary wall of the property of the appellant and first defendant were demolished on the night of 31.10.1998 by respondents 1 and 2 and thereafter they instituted O.S.620 of 1998 and during the rainy season, there was a landslide on the eastern side of the property of the appellant and therefore the eastern wall was reconstructed at its original position and there was no encroachment and hence respondents 1 and 2 are not entitled to the decree sought for. RSA 580/2011 3 2. Learned Munsiff, on the evidence dismissed the suit holding that respondents 1 and 2 did not establish a right of way over plaint B schedule property. They challenged the judgment before Sub Court, Muvattupuzha in A.S.38 of 2003. Learned Sub Judge, on reappreciation of the evidence, found that respondents 1 and 2 and their predecessors have been using the plaint B schedule way for more than 30 years openly and peacefully, as of right and as an easement without obstruction and therefore they have prescribed a right of way. Learned Sub Judge also found that the way was originally having a width of 10 feet and at the portion where the plaint B schedule way runs towards the south, along the eastern boundary of the property of the appellant and first defendant, a portion of the way was encroached upon by them and thereby reduced its width and respondents 1 and 2 are entitled to the decree sought for. Learned Sub Judge passed a decree declaring the right of easement by prescription over plaint B schedule way and also for a permanent prohibitory injunction restraining the appellant and first defendant from obliterating the lie of way along plaint B schedule way or obstructing the RSA 580/2011 4 motorable access to the plaint A schedule property and also directed to remove the obstruction caused within two months. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that first appellate court did not properly appreciate the evidence and ignored the relevant evidence given by DW1 the Commissioner who submitted the original of Ext.B1 report in O.S.620 of 1998 and Ext.B2 plan. Relying on the said evidence, learned counsel would argue that the way was not having a width of 10 feet as found by the first appellate court and the way was widened before the institution of O.S.620 of 1998 after encroaching upon a portion of the property belonging to the appellant, first defendant and subsequently due to a landslide, when portion of the property had fallen on the eastern way, appellant and first defendant were compelled to construct a compound wall on the eastern boundary and they constructed the compound wall at its original position, without encroaching any portion of the way and therefore the decree granted by the first appellate court is not sustainable. RSA 580/2011 5 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the right of way claimed by respondents 1 and 2 over plaint B schedule property was disputed in the written statement, the contention was actually with regard to only the width of the way and not the right of way as such. On the evidence first appellate court was justified in holding that respondents 1 and 2 had established a right of way by easement of prescription starting from the northern mud road and proceeding towards the south along the eastern boundary of the property of the appellant and the first defendant and reaches the plaint A schedule property. The only dispute is with regard to its width. Though appellant contended that the width of the way is only 4 feet, the learned Sub Judge, on appreciation of the evidence entered a factual finding that the width was 10 feet as claimed by appellant. The argument of the learned counsel is that, if the evidence of DW1 with Ext.B1 report is properly appreciated, the factual finding cannot be correct. On going through the materials, I do not find that the factual finding entered by the first appellate court is not RSA 580/2011 6 in accordance with the evidence. The report and plan submitted by the Commissioner establish that the width of the way on the remaining part of the way is not four feet as claimed by the appellant but 10 feet as claimed by respondents 1 and 2. The factual finding cannot be interfered in second appeal. No substantial question of law is involved in the appeal. Hence appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk