IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 RSA.No. 1404 of 2010() ---------------------- AS.09/2009 of DISTRICT SESSIONS COURT,THODUPUZHA OS.230/2007 of MUNI-MAGI.COURT,THODUPUZHA .................... APPELLANT/DEFENDANT --------------------------------------- THOMAS ALIAS THOMMACHEN, S/O.EMMANUEL, THOTTUNKAL HOUSE, PROP:MATHA RUBBER NURSERY, NELLAPARA KARA P.O., KARINKUNNAM VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.T.J.MICHAEL SRI.JOSE MATHEW (KAVALAKALAM) RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- DEVASIA ALIAS BABY, S/O.BABY, AGED 62 YEARS, KARIMKUTTIYIL HOUSE, OTTALLOOR KARA, KARINKUNNAM P.O., KARINKUNNAM VILLAGE, THODUPUZHA TALUK-685586. ADV. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1404 of 2010 ............................................ DATED THIS THE 2nd DAY OF AUGUST, 2011 JUDGMENT Defendant in O.S.230 of 2007 on the file of Munsiff Court, Thodupuzha is challenging the concurrent decree granted in favour of the respondent restraining the appellant from trespassing into the plaint schedule property. Plaint schedule property admittedly belongs to the respondent. Appellant is contending that he has a right of way through the plaint schedule property to reach the eastern road. According to the appellant, he and his predecessor have been using that way for more than 20 years as of right and as an easement, openly and peaceably without any interruption and therefore he has prescribed a right of way. Respondent contended that appellant has not been using a way through the plaint schedule property and therefore he is not entitled to have a right of way through the plaint schedule property. 2. Learned Munsiff on the evidence, found that appellant did not establish that he had a right of way by easement of RSA 1404/2010 2 prescription as claimed, through the plaint schedule property and therefore granted a decree restraining him from trespassing into the plaint schedule property. Appellant challenged the judgment before District Court, Thodupuzha in A.S.9 of 2009. Learned 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. 3. When the appeal came up for admission, notice was issued to the respondent before admission. Respondent appeared. Learned counsel appearing for appellant and respondent were heard. 4. The argument of the learned counsel appearing for appellant is that evidence establish that there is no other way except the way through the plaint schedule property to the property where the appellant is running a Nursery. It is argued that the way to the property of the appellant has been from the eastern road and it passes through the plaint schedule property and then enters the property of Mathai and then reaches the property of the appellant and this is the way which is being used by the appellant and earlier by his predecessors and the appellant RSA 1404/2010 3 has been conducting the Nursery since 1980. It is argued that when the evidence establish that there is no other way to the property of the appellant, a decree for injunction should have been granted. Learned counsel argued that appellant had examined the Contractor, who constructed the western wall of the eastern road and evidence of DW2 establishes that stepping stones were placed on the western side of the road, to enable the appellant to reach his property as well as for the respondent and Mathai to reach their properties and there is no reason to disbelieve the evidence of DW2. Learned counsel also pointed out that though respondent contended that there is a way to the property of the respondent from the west, evidence establish that there is thodu in between the property of Sadanandan and the property of the appellant and further to the west of the property of Sadanandan is the road and Sadanandan when examined as DW3 deposed that appellant has not been using any way through his property. In such circumstances, courts below were not justified in denying the right of way available to the appellant. Learned counsel further argued that though the appellant had shifted the way, subsequent to the acquisition of right of way by RSA 1404/2010 4 easement of prescription, it will not destroy his right available to him under Section 15 of Indian Easement Act and therefore the decree is unsustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the suit is one for injunction instituted by the respondent restraining the appellant from trespassing into the plaint schedule property, the real dispute between the parties is the claim of the appellant for a right of way, through the plaint schedule property. The question is whether appellant has established right of way by easement of prescription. As rightly found by the courts below to claim a right of way by easement of prescription, appellant has to establish that he or his predecessor have been using the disputed way openly, peaceably and continuously without interruption for more than 20 years and that too, as of right and as an easement. Trial court, on proper appreciation of the evidence entered a factual finding that appellant did not establish that he or his predecessor have been using the way through the plaint schedule property for more than 20 years continuously and that too as of right and as an easement. First appellate court on re-appreciation RSA 1404/2010 5 of the evidence confirmed that finding. Though learned counsel vehemently argued that the finding is not factually correct and made available copies of the depositions of the witnesses, on going through the evidence, I cannot agree with the learned counsel that the factual finding of the courts below is not in accordance with the evidence. Moreover, even according to the appellant, the way claimed by him starts from the eastern road, then passes through the plaint schedule property belonging to the respondent and thereafter through the property of Mathai and then only reaches his property. Appellant has no case that Mathai was on inimical terms with him. On the other hand, it is his case that he had obtained the property, on lease from Mathai, which lies to the east of his property earlier. Though in chief examination, he deposed that the lease was obtained in 1992, in cross examination he deposed that he obtained the property in 1980. It is his evidence that the eastern boundary of the property of Mathai, which was taken on lease, is the eastern road. The evidence of DW1, the appellant is that before the construction of the wall on the western side of the road, direct entry from the western property to the eastern road was possible. If that be the RSA 1404/2010 6 case, evidence of DW1 establishes that he has been in possession of the property belonging to Mathai, which lies immediately to the west of the eastern road, on lease and there was direct entry from the eastern road is to that property. If that be so, he had direct entry to his property from the eastern road, through the leasehold property obtained from Mathai. In the light of the evidence on record, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk