IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 RSA.NO. 1136 OF 2008() ---------------------------------- AS.64/2004 OF PRINCIPAL SUB COURT,ALAPPUZHA OS.782/2001 OF ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS – APPELLANTS - DEFENDANTS : ----------------------------------------------------------------- 1. KUMARAN, S/O.VELU, KOCHUPARAMBIL WARD NO 1, VELIYANADU VILLAGE, ALAPPUZHA. 2. VIJAYAMMA, W/O.KUMARAN, KOCHUPARAMBIL , WARD NO.1, VELIYANADU VILLAGE, ALAPPUZHA. BY ADV. SRI.B.PRAMOD RESPONDENT – RESPONDENTS - PLAINTIFFS: -------------------------------------------------------------- 1. KRISHNANKUTTY NAIR, S/O.PADMANABHA PILLAI, KALPAKASSERIL HOUSE WARD NO.1, VELIYANADU VILLAGE,ALAPPUZHA. 2. K.G.SALAMMA, W/O.KRISHNANKUTTY NAIR KALPAKASSERIL HOUSE, WARD NO.1, VELIYANADU VILLAGE ALAPPUZHA. ADV. SRI.MAURICE VINCENT FOR RESPTS. SRI.B.SUBASH FOR RESPTS. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.1136 of 2008 ================================= Dated this the 25th day of March, 2010 J U D G M E N T Second Appeal is in challenge of concurrent finding entered by the courts below as to the right of easement by way of prescription allegedly enjoyed by the respondents/plaintiffs over plaint schedule item No.2, the disputed pathway. Trial court found the issue in favour of respondents and granted a decree in relation to the southern portion of the property of the appellants at a width of five feet from the southern corner of the property of the respondents and reaching upto the P.W.D road on the extreme south. In the appeal at the instance of the appellants, respondents conceded that they are satisfied with a pathway having width of 3.5 feet. Accordingly right of access was confined to a pathway having that much width. Appellants are still aggrieved and preferred this Appeal raising by way of substantial questions of law whether in the absence of prayer for prohibitory injunction against disturbance of user of the pathway respondents could seek declaration against the mandate of Section 34 of the R.S.A. No.1136 of 2008 -: 2 :- Specific Relief Act (for short,”the Act”) and whether courts below were justified in finding that respondents are entitled to the right of easement by prescription in the absence of sufficient plea and evidence. It is contended by learned counsel for the appellants that there is neither proper plea nor evidence regarding user of the alleged pathway for the statutory period. According to the learned counsel courts below were not justified in acting upon Ext.A5, partition deed entered into between the predecessor of respondents to which appellants were not parties. It is also the contention of the learned counsel that nowhere it is stated in the plaint that respondents were using the disputed pathway for the statutory period. Further contention is that report of the Advocate Commissioner or even Exts.X1 and X2 relied on by the respondents would not show that there was any such pathway. There was no reason for disbelieving the evidence of D.Ws.1 and 2. 2. It is not disputed that plaint schedule item No.1 belonged to the respondents as per sale deed Nos.2326 of 1980 and 1577 of 1978. On the south it is the property of appellants. On the further south of property of appellants is the public road. According to the respondents, disputed item R.S.A. No.1136 of 2008 -: 3 :- No.2, pathway originated from the public road on the south, passed through property of appellants and reached item No.1 which is their only access. Respondent No.2 gave evidence as P.W1. P.W.2 is a neighbour and gave evidence in favour of respondents. Their evidence is that the disputed way is being used by the predecessors of respondents for about 50 years. P.Ws.3 and 4 are the Secretary and President respectively, of the local Panchayat. Exhibits X1 and X2 are the minutes prepared by the Panchayat Committee and report of the sub committee which went into the dispute regarding alleged user of the pathway. Evidence of P.Ws.3 and 4 and Exts.X1 and X2 is that on a complaint preferred by respondent No.1, they visited the property, conducted a local enquiry and learnt that respondents are using the disputed pathway which was obstructed by the appellants and hence they recommended that the obstruction has to be removed. Evidence of P.Ws.3 and 4 and Exts.X1 and X2 as pointed out by the learned counsel for appellants would not of course reveal that as on the date of their inspection there was any pathway along the western side of the property of the appellants leading to the road on the south. But P.Ws.1 and 2 have given evidence in that line. Exhibit A5 is the partition deed of the year 1977. R.S.A. No.1136 of 2008 -: 4 :- There is a recital in Ext.A5 that along the southern side of the properties dealt with therein there is a pathway for access to the public road. Appellant No.1 when examined as D.W.1 admitted that on the immediate south of plaint schedule item No.2 is the property of appellants, public road is on the south of property of appellants and that in between property of appellants and plaint schedule item No.1 there was no public road. D.W.1 has no doubt stated that the pathway referred to in Ext.A5 is plaint schedule item No.2. It has come in evidence that though the public road was taken over by the P.W.D. only later, formerly it was a road which vested with the Panchayat. In these circumstances there could be no dispute that the public road mentioned in Ext.A5 is the road admitted by appellant No.1 as D.W1 as situated on the southern side of their property. Hence also recital in Ext.A5 can be taken as in relation to the pathway which went along the western side of the property of the appellants and reached the public road on the extreme south. Coupled with that, there is the evidence of P.Ws.1 and 2 who have given evidence regarding the user of the disputed pathway by respondents and their predecessors for more than the statutory period. 3. So far as the evidence of D.W.2, ward member of R.S.A. No.1136 of 2008 -: 5 :- the local Panchayat is concerned he stated that there was a pathway through the south and north of item No.1 (pathway to the south should necessarily be through the western side of property of the appellants) but according to him at a time when parties were in cordial relation respondents used to walk through property of appellants and thereafter they made a claim over the pathway over which dispute arose and following that, the Panchayat Committee interfered. But in the light of evidence given P.Ws.1 and 2 which gets support from the recital in Ext.A5 which I have referred to above, evidence of D.W.2 was not accepted by the courts below. 4. So far as the report of the Advocate Commissioner is concerned, Commissioner has reported that there was a pathway along the western side of plaint item No.1 extending up to the south-western corner of that property but he could not find any pathway in continuation of that way along the western side of property of appellants and reaching the public road. Commissioner has reported that the disputed way could not be properly identified (in the property of appellants) since there were mango and coconut trees and plantain seedlings towards west of property of appellants. It is true that the Commissioner has not reported about the oldness of R.S.A. No.1136 of 2008 -: 6 :- the same. I must bear in mind that the Commissioner visited the disputed pathway a month after the alleged obstruction. Courts below found in favour of existence of the pathway along the western side of the property of the appellants. That is a finding of fact on evidence and involved no substantial question of law. 5. Yet another argument is lack of plea as regards the period of user and the length and width of the disputed pathway. So far as the latter part of that contention is concerned I am unable to accept that since it is specifically pleaded that the disputed pathway had a width of five feet and length of 60 feet. So far as length of its user is concerned it is true that it is not specifically stated in the plaint that user extended for the statutory period of twenty years. But there are sufficient indications in the plaint that respondents had stated about the user of the pathway for more than the statutory period. For, they stated that themselves and predecessors were using the pathway. Exhibit A5 is the prior document of the respondents. That document is of the year 1977. Therefore going by the plaint averments there is no difficulty in discerning that it was pleaded in the plaint that respondents and their predecessors were using the pathway R.S.A. No.1136 of 2008 -: 7 :- even prior to 1977 (year of Ext.A5) onwards. The suit is filed in the year 2001, i.e., after completion of the statutory period under Section 15 of the Indian Easements Act even if computed from 1977 onwards. Therefore the contention that because period of user is not stated in the plaint respondents have to lose the case in my view is only a technical contention which on the facts and circumstances stated above cannot stand. 6. Lastly it is argued that in so far as there is no prayer of prohibitory injunction against disturbance of the right declaration of easement ought not have been granted under Sec.34 of the Act. Proviso to that Section states that where the plaintiff being able to seek further relief that a mere declaration has omitted to seek such relief, no declaration shall be granted. Here, respondents, along with the declaration of easement have prayed for a mandatory injunction also. If respondents have no apprehension presently that appellants would further obstruct the user of the pathway once it is declared and mandatory injunction is granted, there is no reason why one should insist that respondents should have asked for prohibitory injunction also. Respondents can ask for prohibitory injunction if they have an apprehension that R.S.A. No.1136 of 2008 -: 8 :- appellants might interfere with the user of the pathway after it is restored to its original position. On going through the judgments under challenge and hearing counsel on both sides I do not find any substantial question of law involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.2515 of 2008 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv