IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 RSA.No. 693 of 2004 ----------------------- AS.406/2000 of ADDL.DISTRICT COURT, THRISSUR OS.52/1999 of M.C.,VADAKKANCHERRY .................... APELLANTS/RESPONDENTS 2& 3/L.Rs of PLAINTIFF. ---------------------------------------------------------- 1. THANKA, AGED 70 YEARS, W/O.CHENNAN, PUNNAPPARAMBU COLONY DESOM, THEKKUMKARA VILLAGE, THALAPPILLY TALUK. 2. PADMAVATHY, AGED 42, D/O.CHENNAN, PUNAMPARAMBU COLONY DESOM, THEKKUMKARA VILLAGE, THALAPPALLY TALUK. BY ADV. SRI.V.RAJAGOPAL SRI.K.N.CHATHUKUTTY RESPONDENTS: APPLICANTS/DEFENDANTS. ------------------------------------------------ 1. MUNDAN, S/O.THATHAPPAN, PUNNAPPARAMBU COLONY, DESOM, THEKKUMKARA VILLAGE, THALAPPILY TALUK. 2. THANKA, W/O.MUKUNDAN, PUNNAMPARAMBU COLONY DESOM, THEKKUMKARA VILLAGE, THALAPPILLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------- R.S.A. No 693 of 2004 -------------------------------------------------- Dated this the 17th June 2008 JUDGMENT Additional respondents 2 and 3 in A.S. No 406 of 2000 of District Court, Thrissur who are legal representatives of the sole deceased plaintiff in O.S. No 52 of 1999 on the file of the Munsiff's Court, Wadakkancherry are the appellants. The suit was filed by the original plaintiff for a decree of injunction in relation to B schedule pathway for access to A schedule property belonging to her. The suit was decreed. On appeal by the defendants, the decree passed by the trial court was reversed by the first appellate court and the suit was dismissed. 2. The original plaintiff who was the respondent before the first appellate court passed away pending the appeal and her legal representatives were impleaded as additional respondents 2 and 3 and they figure as appellants in this R.S.A. The original plaintiff instituted the suit for a decree of prohibitory injunction as stated above, inter alia, on the allegation that plaint “A” schedule property having an extent of 4 cents was purchased by her under Ext A1 sale deed and RSA 693/04 2 she is having residential building also therein that she is having access to “A” schedule property through the “B” schedule pathway which starts from the Panchayat road and reaches upto the northern portion of plaint “A” schedule property and that is the only means of access to plaint “A” schedule property and the plaintiff and the nearby residents have been continuously using the said pathway as a means of access, that on the eastern side of “B” schedule pathway lies the property of the defendants, that they are causing obstruction to plaint “B” schedule pathway by blocking entry through the said pathway, that on 19.01.1999 they made an attempt to block the pathway and their attempt could be thwarted only by the timely intervention of the plaintiff, that the defendants may at any time cause obstruction to the said pathway which cannot be prevented except with the assistance of court and hence the suit. 3. The defendants filed joint written statement resisting the suit. According to them, plaint B schedule is not a pathway but a water channel which was put up by them to flow out the excess water from their property to the drainage situated by the side of the Panchayat road. Their property is lying in a slanding position from south to north and they have constructed a residential building by RSA 693/04 3 levelling the northern portion of the property. The southern portion of the property is lying at a higher level of 10 feet than the remaining portion and hence a water channel was put up through the western side of the property of the defendants. The attempt of the plaintiff is to use the above water channel as a pathway to plaint “A” schedule. In the title deed of the plaintiff a wrong description pertaining to the boundary is shown as pathway which is actually the property of the defendant. The above description however will not confer any right on the plaintiff to claim right of way over the water channel that goes through the property of the defendants. The plaintiff has never used plaint “B” schedule as a pathway the plaintiff has not specified her right over the plaint B schedule so as to obtain an injunction in her favour. It is incorrect to say that there is no other pathway to reach plaint “A” schedule other than “B” schedule. The plaintiff is seeking a short cut passage from her property to the public road through the property of the defendant. The request made by the plaintiff in that behalf was not conceded to by the defendants and that has paved the way for the suit. The plaintiff and her predecessors were using the pathway situated on the southern side of plaint “A” schedule property which turns to the western direction and reaches the RSA 693/04 4 Panchayat road. The defendants have been fencing the northern boundary of their property for the last ten to fifteen years and fencing on the northern boundary is necessary to protect their property. The plaintiff has no cause of action and the suit has to be dismissed. 4.The trial court raised necessary issues for trial and considering the pleadings of the parties and the evidence adduced at trial which consisted of oral evidence of P.Ws 1 to 3 and D.Ws 1 and 2 and documentary evidence, Exts A1, B1 and B2 and C1 and C2, decreed the suit in favour of the plaintiff granting injunction as prayed for restraining the defendants from causing obstruction to her using plaint “B” schedule as a means of ingress and egress to plaint “A” schedule property belonging to her. On appeal filed by the defendants, the appellate court found that there is no specific plea advanced by the plaintiff as the basis for her claim whether it is easement by prescription, “grant” or “necessity” or whether the claim is that it is a public pathway and hence allowed the appeal, setting aside the judgment and decree passed by the trial court and dismissed the suit. Hence this R.S.A by the plaintiff. 5. It is contended before me by the learned counsel for the appellant that other than plaint “B” schedule pathway there is no RSA 693/04 5 other pathway that goes to A schedule property and that therefore plaintiff ought to have been granted a decree restraining the respondents-defendants from obstructing the use of the said pathway. I am at a loss to understand on what basis is the right claimed by the appellants for a decree as prayed for in the suit. They have not pleaded a case of right of easement by prescription. They have no case that there is any grant in their favour of right to have plaint B schedule as a pathway. Ingredient to establish that right exists as of necessity is also neither pleaded nor proved. If at all B schedule pathway is a public pathway, the suit should have been filed in a representative capacity so as to have the verdict binding on all the people who are using the said pathway. Without basing the right on some principle of law and establishing the said case alleged, simply by alleging that B schedule is a pathway that is being used by the plaintiff for access to A schedule property, appellants cannot hope to get a decree in their favour restraining the defendants from causing any obstruction to the use of “B” schedule as a pathway which is portion of the property of the defendants themselves. Thus there is no merit at all in this Second Appeal and there is no question of law and much less any substantial question of RSA 693/04 6 law arising for consideration by this court in this R.S.A especially in view of lack of pleadings in the plaint by the plaintiff to consider her case one way or the other according to law. Counsel for the appellants has gone to the extent of saying that the courts below should not have considered the request as one for right of easement as no such relief has been claimed by the plaintiff. In the circumstances this R.S.A is devoid of any merit and deserves only to be dismissed in limini refusing admission. 6. In the result, confirming the correctness of the decree of the first appellate court dismissing the suit, I dismiss this R.S.A in limini refusing admission. Sd/- K.P.BALACHANDRAN Judge 17/06/2008 en Order on I.A. No 1214 of 2004 ---------------------------------------- Dismissed. Id./- K.P. Balachandran, Judge 17/06/2008 [true copy]