IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 RSA.No. 6 of 2008() ------------------- AS.70/2007 of DISTRICT COURT, KOTTAYAM OS.304/2005 of MUNSIF COURT, KANJIRAPPALLY .................... : APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------- KUNJOMMACHAN, AGED 62 YEARS, S/O. KURIAKOSE, RESIDING AT NALLAPARAMBIL HOUSE, KARIKKATTOOR KARA, MANIMALA VILLAGE,KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.C.P.SAJI RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------ 1. N.A. SEBASTIAN @ DEVASIACHAN, AGED 62 YEARS, S/O. ANTONY, NALLAPARAMBIL HOUSE, POOVATHOLI P.O., MULAYANI BHAGOM,KARIKATTOOR KARA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK. 2. GRACYKUTTY, AGED 57 YEARS, W/O. SEBASTIAN, NALLAPARAMBIL HOUSE, POOVATHOLI P.O., MULAYANI BHAGOM,KARIKATTOOR KARA, MANIMALA VILLAGE, KANJIRAPPALLY TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.11/2008 IN R.S.A.NO.6/2008 3.1.08 DISMISSED SD/- M.Sasidharan Nambiar P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 6 OF 2008 =========================== Dated this the 3rd day of January, 2008 JUDGMENT Plaintiff in O.S.304/2005 on the file of Munsiff Court, Kanjirappally is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for declaration of right of easement by prescription over item No.3 of the plaint schedule pathway and for a permanent prohibitory injunction. Item No.1 of the plaint schedule property is owned by appellant and his brother. Item No.2 of the plaint schedule property is the property owned by first respondent which lies to the west of item No.1. Karikattoor Cheruvally Panchayat road lies to the west of item No.2 of the plaint schedule property. Plaint item No.3 is the pathway claimed by appellant having a width of 10 feet which starts from the panchayat road on the west and proceed through item No.2 of plaint schedule property and R.S.A.6/2008 2 enters item No.1 of the plaint schedule property and proceeds further to the property of Joseph. Appellant contended that he and his family members were using item No.3 way without an obstruction for the last twenty five years and they have acquired a right of easement by prescription and portion of that property which is passing through item No.2 of the property of the first respondent is shown as item No.4. Contending that when appellant tried to repair the road, respondents threatened him and they have no such right appellant sought a decree for a declaration of his right of easement and permanent prohibitory injunction. First respondent resisted the suit contending that appellant has no right of easement over item No.3 of the plaint schedule property. It was contended that the way which starts from the Panchayat road on the west is a private road belonging to first respondent and it reaches to the courtyard of first respondent and in 1992 for the purpose of transporting latrate stones from his quarry first respondent constructed a road R.S.A.6/2008 3 upto the quarry and one Joseph who was permitted to construct a road upto his property for the purpose of building construction and appellant also used the way on permissive basis but it is not as of right and therefore he is not entitled to a decree for a declaration or injunction sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dws. 1 to 3 and Exts.A1 to A4 and Exts.C1 and C1(a) found that appellant did not establish right of easement by prescription and dismissed the suit. Appellant challenged the decree and judgment before District Court, Kottayam in A.S.70/2007. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that evidence establish that except item No.3 of the plaint schedule way, there is no way available R.S.A.6/2008 4 to item No.1 of plaint schedule property and evidence establish that the original thondu was formed a road in 1980 and since then appellant and his family members have been using that way as of right and as an easement peaceably and therefore courts below should have granted the decree sought for. It was argued that evidence of Pws. 1 and 2 with Ext.C1 report and C1(a) sketch establish that road was constructed more than twenty years and it is being used by appellant and his family members as of right and therefore appellant is entitled to the decree for a declaration and injunction sought for. Learned counsel also argued that in any case in the light of evidence that item No.3 road exist, courts below should have granted a decree for injunction, even if appellant is not entitled to a decree for a declaration. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Appellant is claiming a right of easement R.S.A.6/2008 5 by prescription as provided under section 15 of the Indian Easement Act. In order to succeed in the case appellant has to establish that he or his predecessors have been using item No.3 of the plaint schedule way openly, peaceably and as of right and as an easement without interruption and that too for more than twenty years prior to the institution of the suit. The question is whether appellant or members of his family have been using that way as of right and as an easement, openly and peaceably for the requisite period. Learned Munsiff on appreciating the evidence found that evidence is insufficient to prove that appellant has been using that road as of right and as an easement for the requisite period as provided under section 15 of the Act. Learned District Judge reappreciated the evidence and on such reanalysis found that evidence is insufficient to prove that appellant or members of his family have been using that way as of right and as an easement continuously for more than twenty years without R.S.A.6/2008 6 interruption so as to enable him to get a decree for a declaration or injunction. That finding of fact concurrently arrived at by the courts below cannot be interfered in exercise of the powers of this court under section 100 of Code of Civil Procedure. On going through the judgments of the courts below, it is found that evidence was appreciated in the proper perspective and in any case it cannot be said that appreciation of evidence was perverse. Therefore finding fact by the courts below, that appellant failed to establish the right of easement by prescription cannot be interfered. As appellant has no right to use item No.3 of plaint schedule way, he is not entitled to the decree for injunction also. The appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- C.M.P.1556/2000. IN S.A.598 /2000 --------------------- ORDER 3RD JANUARY,2008