IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 SA.No. 357 of 1999(A) --------------------- AS.113/1997 of II ADDL.SUB COURT,ERNAKULAM OS.53/1995 of I ADDL.M.C.,ERNAKULAM .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------------------------------------- 1. BAHULEYAN, S/O.LATE KUNCHU, AGED 44, RESIDING AT KEEZHOTTUPARAMBU, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. 2. DASAN, S/O.LATE KUNCHU, AGED 50, RESIDING AT KEEZHOTTUPARAMBU, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. 3. VELAYUDHAN, S/O.LATE KUNCHU, AGED, 58, RESIDING AT KEEZHOTTUPARAMBU, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. BY ADV. MR.JAIJI ITTEN RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------- BEENAKUMARI, D/O.P.PRABHAKARAN AND W/O.SUKUMARAN, AGED 40, GOVERNMENT EMPLOYEE, RESIDING AT PUTHIYEDATHU HOUSE, PANANGAD DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM. ADV. MR.K.C.CHARLES MR.A.RAJAGOPALAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 357 of 1999(A) ORDER ON C.M.P.NO.2037/99 IN S.A.NO.357/1999 DISMISSED. 29.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.357 Of 1999 ---------------------- Dated this the 29th day of June, 2010. J U D G M E N T The defendants in O.S.No.53 of 1995 on the file of the I Additional Munsiff Court, Ernakulam are the appellants. Suit was filed for fixation of boundary and for permanent prohibitory injunction. Trial court passed a decree permitting the plaintiff to put up northern and eastern boundary of the plaint B schedule property, ie., the portions which comes adjoining to plaint A schedule property through A, B, C line at her expense. Defendants are also restrained by a permanent prohibitory injunction from trespassing into plaint A schedule property and from causing any obstruction to the plaintiff from enjoying the property and from committing any waste therein. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. 2. Plaint A schedule property admittedly belongs to the plaintiff. Ext.A1 is the partition deed dated 4.4.1994 which would go to show that the plaint A schedule property is allotted to the S.A.No.357 Of 1999 ::2:: plaintiff’s father. Subsequently, as per Ext.A2 settlement deed plaintiff got title over plaint A schedule property. Admittedly, plaint A schedule property is the property given for kudikidappu. It is the plaintiff’s case that in 1994 when the 3rd defendant constructed a house in the kudikidappu land, with her father's permission buildings materials were taken to the site in a lorry through her property, since a lorry cannot be taken through the road which lies on the west of defendants' property. According to the plaintiff, defendants are using the road which lies on the west of their property from the date of shifting of kudikidappu. An advocate commissioner inspected the plaint schedule property and prepared a sketch showing the lie of the property. Ext.C1 is the report and C1(a) sketch. In Ext.C1 the commissioner reported that there is no visible separations like fencing, compound wall etc. in between A & B schedule properties, but there are three boundary stones built in concrete one on the south eastern corner of the plaint B schedule property, another on the north eastern corner of the B schedule property and third one on the south western corner of plaint A schedule property. S.A.No.357 Of 1999 ::3:: Commissioner also reported that there is a public pathway passing through the west of plaint B schedule property; that the south western corner of the B schedule property is open to this public pathway and that the defendants are having their ingress and egress to the said public pathway from their property. 3. Though the appellants/defendants filed objections to Ext.C1 report, no evidence has been adduced to substantiate their contentions. They did not take any steps to examine the commissioner or place materials to prove that the report of the commissioner is incorrect. In the said circumstances, the trial court as well as the appellate court found that the Ext.C1 commission report and C1(a) sketch are acceptable. 4. At the instance of the defendants another commissioner was appointed to measure and demarcate the boundaries of plaint B schedule property. The commissioner with the assistance of the Additional Taluk Surveyor prepared a plan and submitted the report. Ext.C2 is the report and C2(a) is the plan. Though the plaintiff and defendants filed objections to the Ext.C2 commission report and C2(a) plan, they did not adduce S.A.No.357 Of 1999 ::4:: any evidence to substantiate their objections. In Ext.C2(a) plan the commissioner measured and demarcated the plaint A schedule property and plaint B schedule property. The plaintiff requested that she may be permitted to put up boundary in the line shown by the commissioner in Ext.C2(a) plan. The commissioner marked the boundary line shown in the plan in between the plots of plaintiff and defendants. Since there is no demarcating boundary line on the northern and eastern side of plaint B schedule property dividing the properties of the plaintiff and defendants, the court below held that the plaintiff is entitled to put up northern and eastern boundary of the plaint B schedule through A, B & C line in Ext.C2(a) plan. 5. The commissioner also noted a pathway through the plaint A schedule property and it is further reported that there is signs of compound walls of 15 feet through the northern side of the plaint B schedule property and at the end of the boundary wall is constructed by bricks. 6. I have perused the written statement filed by the defendants. In the written statement the defendants have raised S.A.No.357 Of 1999 ::5:: a contention that they have a right of way through plaint A schedule property in Ext.C1 report. It is mentioned that there is a pathway in existence in plaint A schedule property. According to the plaintiff, the father had permitted the third defendant to take the building materials to his property when he renovated his house. Plaintiff submitted that the appellants/defendants have no right of way through her property. The lower appellate court also examined the question as to whether the appellants/defendants have a right of way through plaint A schedule property. Lower appellate court held that even assuming that the appellants have used plaint A schedule property for their ingress and egress they can claim right of way as an easement only if they plead and prove right of easement. The nature of the right claimed by the appellants/defendants is not disclosed in their pleadings. There is a bald statement that the first appellant has been using the pathway as a matter of right. The lower appellate court held that the pleadings are not sufficient to find that the appellants/defendant have a right of way. S.A.No.357 Of 1999 ::6:: 7. There is no specific pleadings stating that the appellants/defendants have right of way as an easement. In the absence of specific plea as to the nature of right claimed by the appellants and proper proof the courts below are justified in negativing the said plea. 8. In the circumstances, I am of the view that the plaintiff is entitled to reliefs claimed in the suit. Dismissal of the appeal by the lower appellate court is justified on facts and law. The grounds raised by the appellants are not sufficient enough to interfere with the findings on facts recorded by the courts below. No question of law muchless any substantial questions of law arises for consideration in the second appeal. In the result, second appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-