IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 RSA.No. 896 of 2006() AS.282/2005 of DISTRICT COURT, ERNAKULAM OS.357/1996 of MUNSIFF's COURT,MUVATTUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 3:- 1. VARGHESE MATHAI @ PAPPACHAN, RESIDING AT PERUMPILLIL FROM NAREKKATTU, PIRAVOM VILLAGE, DO. KARA. 2. ELIYAMMA, DO. DO. BY ADV. MR. R.AZAD BABU RESPONDENTS/RESPONDENTS/PLAINTIFFS:- 1. SABU, S/O.KURUVILA, VAZHAMALAYIL, PIRAVOM KARA, DO. VILLAGE. 2. K.V.CHELLAPPAN, S/O.VELAYUDHAN, VAIKATHUMALAYIL PIRAVOM KARA, PIRAVOM VILLAGE. 3. AMMINI, DO. DO. 4. CHANDRAN, PUNNACHALIL DO. DO. 5. INDIRA, DO. DO. 6. KURUVILA, VAZHAMALAYIL, 7. A.C.GEORGE, ARACKAL, PIRAVOM KARA, DO. VILLAGE ADV. MR.THOMAS M.JACOB FOR R1,R2 & R6 MR.G.RAJAGOPAL FOR R1,R2 & R6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 896 of 2006 ========================== Dated this the 2nd day of February, 2009. JUDGMENT Defendants 1 and 3 in O.S. No. 357 of 1996 on the file of the Munsiff's Court, Muvattupuzha are the appellants in this Second Appeal. The said suit instituted by 7 plaintiffs who are the owners of the plaint A to E schedule properties, was one for declaration of a prescriptive easement and an easement by way of grant over the plaint F schedule pathway shown as having a length of 700 feet and width of 12 feet. 2. The case of the plaintiffs can be summarised as follows:- The plaint A to E schedule properties belong to plaintiffs 1 to 7 as per their respective title deeds. The plaint F schedule is a way having an average width of 12 feet and a length of 700 feet. The plaint F schedule way was a thonduvazhi (ally) earlier. In the year 1983, the adjacent owners had surrendered properties for widening the same so as to provide a 4 feet wide road from the Edappillychira-Pathipara road to the Kuttathichira padi on the north. In the year 1983, the 1st defendant, Thalakunnel Varghese and the 7th plaintiff had a talk among themselves in the presence of mediators and Ext.A7 agreement dated R.S.A. No. 896/2006 : 2 : 24.01.1983 was executed for widening the way into a 12 feet road so as to render it convenient for taking Benz lorries. Eversince then, the plaint F schedule road has been in use for taking lorries. The defendants are residing on the western side of the plaint F schedule way. As per Ext.A7 agreement, embankment had to be constructed by the 7th plaintiff and the 1st defendant. On the western side of the way, the plaintiff constructed the embankment after demolishing the 'kayyala' in the properties surrendered by the 1st defendant. The plaintiffs have, thus, got an easement by way of prescription over the old way which was in existence prior to 1983 and an easement by way of grant over the road which was widened into plaint F schedule road for the purpose of beneficial enjoyment of plaint A to E schedule properties lying to the west of the defendants' property. The defendants obstructed the plaintiffs from taking lorry along the plaint F schedule way. Hence the suit. 3. The suit was resisted by the appellants and others contending inter alia as follows:- The plaintiffs have no cause of action. There was no way through the property of the 1st defendant. His property lies slopping from east to west. He had, therefore, constructed an 'edakayyala' to R.S.A. No. 896/2006 : 3 : prevent soil erosion. For the purpose of his personal use, he had constructed a private way to the top most terrace from the southern panchayat road. The said private way exclusively belongs to the defendants. The plaintiffs have no right over the same. It is true that on 24.01.1983, Ext.A7 agreement was executed. But, the same was executed without consulting the real owners of the property namely his mother and the sister who were owning 2.14 acres and 35 cents respectively. Hence, the said agreement will not bind them. At the time of executing the said agreement, the 1st defendant did not have a right over the western property. No road was constructed pursuant to the said agreement which has not come into force. The plaintiffs had demolished the northern 'kayyala' of the 1st defendant's property and had cut open a road before the institution of the suit. They have no sort of easement right over the plaint F schedule property. The suit is liable to be dismissed. 4. Both the courts below have held that there was a narrow pathway along the plaint F schedule road in existence and that the plaintiffs had perfected a right of easement by prescription over the said pathway and that as per Ext.A7 agreement dated 24.01.1983 executed between the 1st defendant as the first party and one R.S.A. No. 896/2006 : 4 : Thalakunnel Varghese and the 7th plaintiff as second party, the existing pathway was widened into a 12 feet road over which the plaintiffs have got a right of grant. The suit was accordingly decreed as prayed for. Hence this Second Appeal. 5. The following are the questions of law formulated in the memorandum of Second Appeal:- A. Whether the courts below are justified in holding that Exhibit A7 agreement is for widening the existing pathway and not for constructing a new pathway and thereby granting a decree of easement by grant? B. Was not there an inherent contradiction in the finding that the plaintiffs are entitled to easement by prescription as well as by grant? C. Were the courts below justified in applying the principle of feeding the grant by estoppel in the case at hand? D. Are the trial court and the first appellate court went wrong in granting easement right over a pathway of 12 ft width whereas the Commissioner's report mentions about a pathway having varying width from 7 ft to 20 ft? E. Whether the first appellate court is justified in granting easementary right of a pathway having a width of 12 ft when evidence in the case reveal that a 45 year old mango tree is protruding into the pathway leaving a width of only 7.5 ft at that point? 6. I heard the learned counsel appearing for the appellants. He reiterated before me the contentions of the appellants. He made the following submissions before me:- R.S.A. No. 896/2006 : 5 : Ext.A7 agreement was executed in the year 1983 at a time when the 1st defendant had not acquired the properties situated to the west of the southern segment of plaint F schedule road. He obtained title over the said property only in the year 1995. Hence, even assuming that Ext.A7 agreement was executed for the formation of a road, it was for the cutting open a new road. Ext.A7 does not mention the existence of any pathway which was sought to be widened. The courts below erred in holding that as per Ext.A7 an existing narrow pathway was sought to be widened into a road. 7. I am afraid that I cannot agree with the above submissions. It is true that Ext.A7 agreement starts by saying that for the purpose of cutting open a road from Edappillychira-Pathipara road towards Kuttathichira padi on the north and that the work was completed from the gates of Thalakunnel Varghese and the 7th plaintiff up to the southern boundary of the property of Mannathukuzhi Kunju. But, the subsequent recitals in Ext.A7 will go to show that the agreement was executed for widening an existing pathway into a road up to the panchayat road namely the Edappillychira-Pathipara road on the south. The following recital in Ext.A7 makes it beyond any doubt that an existing pathway was being sought to be widened:- R.S.A. No. 896/2006 : 6 : “ 8. Both the courts had, after a careful evaluation of the documentary and oral evidence in the case including the testimony of PW3, came to the conclusion that the plaintiffs have prescribed a right of way over the existing pathway and that thereafter Ext.A7 agreement was executed evidencing the conferment of an easement by way of grant with regard to the 12 feet wide plaint F schedule road. The very mention of an iruvakayyala (two parallel stone walls usually on either side of an ally) suggests the existence of a narrow pathway. It was after adverting to all these aspects of the case that the courts below came to the aforesaid finding. The said finding is a pure finding of fact recorded on the basis of the evidence in the case. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated R.S.A. No. 896/2006 : 7 : in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 2nd day of February, 2009. V. RAMKUMAR, JUDGE. rv