IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 SA.No. 89 of 1996() ------------------- AS.200/1991 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.176/1987 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANT:APPELLANT/PLAINTIFF:- ----------------------------------------------------- NARAYANAN GOPALAKRISHNAN, THAYYIL VEETTIL FROM PATTOOR VEETTIL, PATTOOR MURI, NOORANADU VILLAGE. BY ADV. SRI.G.PRABHAKARAN SRI.I.DINESH MENON RESPONDENT:RESPONDENT/DEFENDANT:- ------------------------------------------------------------ GANGADHARAN PADMAKUMAR, GANGA BHAVAN, PATTOOR MURI, NOORANADU VILLAGE, (ADDL.2ND DEFENDANT) ADV. SRI.K.SASIKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J = = = = = = = = = = S.A.No.89 of 1996. = = = = = = = = = = Dated this the 30th day of January, 2010. J U D G M E N T The plaintiff in OS.No.176/1987 on the file of the Munsiff Court, Mavelikkara is the appellant. The defendant/respondent is none other than the brother of the appellant. The appellant instituted the suit before the lower court seeking a declaration of easement right by prescription and consequential prohibitory injunction over plaint C schedule pathway with an allegation that the respondent had been denying the right of way and attempting to obstruct the pathway for which he had no manner of right. 2. The respondent contended that there is no pathway as scheduled in the plaint and that the appellant had no manner of right over any such pathway and prayed for dismissal of the suit. SA.No.89 of 1996. -: 2 :- 3. After raising the issues the parties were sent for trial. On the side of the appellant Pws.1 to 3 were examined and Ext.A1 was marked. On the side of the respondents Dws.1 to 4 were examined and Exts.B1 was marked. Two commission reports were marked as Exts.C1 and C2. 4. The trial court on appraisal of the evidence on record arrived a finding that there was no pathway as alleged in the plaint and that what is described in the plaint as pathway is only a bund put up to protect B schedule property and that the appellant had got another pathway for ingress and egress to plaint schedule property. Consequently, the suit was dismissed. 5. Feeling aggrieved, he preferred an appeal as AS.No.200/1991 before the Addl.District Judge-II, Mavelikkara. The lower appellate court concurred with the trial court. The appeal was also dismissed. Now this Second Appeal. 6. The following are the questions of law raised in SA.No.89 of 1996. -: 3 :- the appeal memorandum. (1) The conclusions drawn on the facts of the case, as proved in the case by the defendant, is wrong as per the report and oral testimony of the Commissioner and Pws.1 to 3, is serious question of law. According to the Commissioner Ext.C1 is an ancient pathway. By Ext.A1 dated 5.4.1962, the plaintiff purchased the property and it is proved that ever since, plaint C schedule pathway is enjoyed by the plaintiff, peacefully and uninterruptedly over 20 years as a matter of right, entitle the plaintiff to be granted with a prescription of easement. (2) There is a failure on the part of the Courts below to see that no public have come forward, if the only alternative public way through the Chira of ‘Pandyan Thodu’, if any, was destroyed totally by annexing the same to plaint B schedule property, leaving the alternative way nonest, which will directly and substantially affect the right of parties. 7. Having gone through the judgments of the courts below, I find that the allegation in the plaint regarding the existence of a pathway as scheduled C in the plaint and the right of use was denied by the respondent. The question whether there was a pathway or not is a question of fact. There is no question of law involved. The courts below had SA.No.89 of 1996. -: 4 :- concurrently found that there is no pathway as schedule C in the plaint and that the appellant had been using another pathway for ingress and egress to plaint A schedule property. It is in the above circumstance, on a conclusion regarding non existence of pathway, the suit was dismissed. The point formulated as questions of law are nothing but regarding the existence of a pathway, the right of usage and the finding on appraisal of the evidence. I find that no question of law is involved. The appeal is devoid of merits. It is accordingly dismissed. There will be no order as to costs. P.S.GOPINATHAN, JUDGE KVS/-