IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 RSA.NO. 626 OF 2008() --------------------------------- AS.277/2002 OF ADDL.DISTRICT COURT, KOZHIKODE OS.474/1994 OF ADDITIONAL MUNSIFF KOZHIKODE - II .................... APPELLANT/RESPONDENT NO.1/PLAINTIFF. ------------------------------------------------------------- K.SAROJINI, D/O.CHAKKARATH AYYAPPAN, THAZHE POROL VEEDU, PANNIYANKARA AMSOM, DESOM OF KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): APPELLANTS/DEFENDANTS 1 TO 8 ------------------------------------------------------------------------- 1. POONADATH GOPALAKRISHNAN, S/O.VELAYUDHAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 2. POONADATH GOPI, S/O.VELAYUDHAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 3. DEVAKI, W/O.VELAYUDHAN, POONADATH, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 4. BABU,/O.VELAYUDHAN, POONADATH, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 5. SURESH, S/O.VELAYUDHAN, POONADATH, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 6. SANTHOSH, S/O.VELAYUDHAN, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 7. SUDHA, D/O.VELAYUDHAN, POONADATH, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. 8. APPUKUTTAN, S/O.KUTTIYAKKAN, POONADATH, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.V.V.SURENDRAN FOR R1 TO 7 SRI.P.A.HARISH FOR R1 TO 7 SRI.G.SREEKUMAR (CHELUR) FOR R8 SMT.PREETHY KARUNAKARAN FOR R8 SMT.M.M.DEEPA FOR R8 SRI.K.RAVI (PARIYARATH) FOR R8 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.626 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11th day of January, 2010 J U D G M E N T ---------------------- Appellant who succeeded in getting decree for injunction in the trial court but suffered its reversal in the first appellate court has come up in Second Appeal urging by way of substantial question of law whether finding of first appellate court is legally sustainable. The dispute concerned an alleged pathway which the appellant described in the plaint as B schedule and which according to the appellant was being used by her and predecessors-in-interest for about 50 years for access to the plaint A schedule which she got title and possession as per Ext.A1. Appellant alleged that respondents attempted to obstruct her from using that pathway. Respondents denied existence of any pathway and stated that properties of respondent Nos.2 and 3 are situated on the west of plaint A schedule. On the immediate north of the property of appellant is a tarred road. She is gaining access to that tarred road from plaint A schedule. Trial court relying on the evidence granted a decree in favour of the appellant. Respondents took up the matter in appeal. First appellate court found that there is no acceptable R.S.A. No.626 of 2008 -: 2 :- evidence regarding the existence of the alleged pathway which is used as of right to confer any right of easement by prescription. Accordingly the appeal was allowed and judgment of the trial court was reversed. That is under challenge in this Second Appeal. It is contended by learned counsel for appellant that finding of the first appellant court is not legally correct. 2. Exhibit C1 is report of the Advocate Commissioner referring to the disputed pathway having width of 3 feet. Commissioner did not say about any alternative pathway for the appellant as suggested by the respondents. Advocate Commissioner inspected the property again and submitted Ext.C3, report. In that report Commissioner stated that at the time of his first inspection on 24.1.1999 he had seen the disputed pathway as a straight line. In Ext.C3 Commissioner reported that the disputed pathway is only a foot mark originating from the bypass road (on the west) and leading to the house of appellant. Commissioner also reported that at the time of starting construction of the residential building in plaint A schedule appellant had submitted a plan to the local authority showing the alternative way (suggested by the respondents) and that plan was approved by the local authority. Copy of that plan (marked as Ext.C4) was also appended to the report by the Advocate Commissioner. A perusal of Ext.C4 shows R.S.A. No.626 of 2008 -: 3 :- that appellant has direct access from plaint A schedule to the tarred road on the southern side. True, existence of another way is no ground to defeat a claim of easement by prescription. But easement is a restriction on the proprietory title of the serveant owner. That being a precarious right should be specifically pleaded and proved in every respect. Though in Ext.C1 Commissioner has reported about the alleged pathway as having width of 3 feet, in Ext.C3 what is stated is only a foot mark and though at the time of his first inspection it was found to be in a straight line at the time of his second inspection it was found to be a zig-zag one. Alleged user of the alleged pathway by the appellant is attempted to be proved by the appellant as P.W.1 and through P.Ws.2 and 3. First appellate court found that P.Ws.2 and 3 are not even specific as to the alleged period of user. They did not say about the lie of the disputed pathway. P.W.2 in cross-examination stated that the bypass road on the west of plaint schedule from which the disputed pathway originated came into existence if remembers correctly, only in the year 1985 but he added that there was a road in that direction even before the bypass road came into existence. However, there is no evidence adduced by the appellant in that way. It has come in evidence that plaint A schedule is a garden land while property of respondent Nos.2 and 3 is a paddy land and access is sought along R.S.A. No.626 of 2008 -: 4 :- the ridge of the paddy land. Use of ridge of an unenclosed paddy land cannot confer any right of easement by prescription. Exhibit A1, title deed of the appellant in respect of plaint A schedule is of the year 1976. The suit was filed in the year 1994 even before completion of the period of 20 years. Further fact noticed by the first appellate court is that none of the prior documents of Ext.A1 was produced. The prior owners were also not examined. It is in these circumstances that the first appellate court found that evidence adduced by the appellant regarding the existence of the alleged pathway and its alleged user are not satisfactory or sufficient to sustain a claim for easement by prescription. Holding so judgment of the trial court was reversed. That decision is based on the evidence on record. I do not find any substantial question of law involved in the Second Appeal requiring its admission. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. No.626 of 2008 -: 5 :- THOMAS P.JOSEPH, J. =================== R.S.A. No.626 of 2008 =================== J U D G M E N T 11TH JANUARY, 2010 R.S.A. No.626 of 2008 -: 6 :-