IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 SA.No. 243 of 1996(D) ------------------------------- [AS.NO.7/1989 OF SUB COURT, OTTAPPALAM, OS.NO.111/1985 OF MUNSIFF'S COURT, OTTAPPALAM] .................... APPELLANT/2ND APPELLANT/2ND PLAINTIFF: ------------------------------------------------------------------- N. RAMAN, S/O. KALI, AGED 65 YEARS, RESIDING AT MUNDAMUKA AMSOM, CHUDUVALATHUR DESOM IN OTTAPALAM TALUK. BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE, ADVS.SMT.PRABHA R.MENON, SRI.KODOTH PUSHPARAJAN, SRI.M.KRISHNAKUMAR. RESPONDENTS/RESPONDENTS & 1ST APPELLANT/DEFENDANTS AND 1ST PLAINTIFF: ------------------------------------------------------------------------------------------------------ 1. PRABHAKARAN, S/O. PERUMBALAKKAL MADHAVAN, RESIDING AT MUNDAMUKA AMSOM, CHUDUVALATHUR DESOM, OTTAPPALAM TALUK. 2. AHALLIA, W/O. PRABHAKARAN, RESIDING AT MUNDAMUKA AMSOM, CHUDUVALATHUR DESOM, OTTAPPALAM TALUK. 3. KALI, W/O. NHALIL ACHUTHAN, RESIDING AT MUNDAMUKA AMSOM, CHUDUVALATHUR DESOM, OTTAPPALAM TALUK. R1 & R2 BY ADVS. SRI.SABU THOZHUPPADAN, SRI.T.R.RAMANATHAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- S.A No.243 of 1996 -------------------------- Dated this the 20th August, 2010 J U D G M E N T Plaintiffs who were non-suited by the courts below are the appellants. 2. According to the plaintiffs, Plot Nos.1 to 5 shown in the rough sketch to the plaint originally belonged to the 1st plaintiff who obtained purchase certificate in respect of the said properties. They were residing in the house in Plot No.1. First plaintiff has assigned Plot No.4 to Kalyanikutty Amma as per sale deed No.1599/79. She had duly assigned the property to the defendants. First plaintiff had sold Plot No.5 to 2nd defendant as per sale deed No.2369/80, i.e Ext.B1. According to the plaintiffs, when Plot No.4 was sold to the 2nd defendant, the 1st plaintiff retained Plot No.2 shown in the sketch having an east-west measurement of 1 kole and a north south measurement of 7 3/4 koles for ingress and egress to Plot No.1 and sold the remaining property. Possession of the respective portions sold by the plaintiffs were given to the vendees leaving a pathway. It is averred that there was a Panchayat road on the southern side and S.A No.243 of 1996 2 there was a way leading from panchayat road to the property of the plaintiff i.e. shown as plaint B schedule property. Pointing out that the defendants had no right to obstruct the plaintiffs in keeping the possession of plaint B schedule property, the the suit was laid. 3. Defendants resisted the suit. They admitted that Plot No.4 as alleged in the plaint was sold to Kalyanikutty Amma by the 1st plaintiff as per sale deed No.1599/1979 which was subsequently assigned to Mammu as per sale deed No.2040/1981. Finally it came to vest with defendants. They also pointed out that Plot No.5 was sold to 2nd defendant as per sale deed No.2369/1980. Disputing the averments in the plaint, it was pointed out that there was no such pathway shown as B schedule left out of the properties of each of the vendees as per the documents. It was pointed out that the plaintiff has other means of access to this property. 4. Plaint B and C schedule properties alleged in the plaint is contrary to the extent and the Plaintiff has access to the Panchayat road on the southern side. According to the defendants, plaintiffs have no manner of S.A No.243 of 1996 3 right to use any portion of the properties as pathway nor any other manner. It is also pointed out that 2nd defendant had constructed a compound wall on the northern side. Defendants contended that there was no pathway as alleged in the plaint and they prayed for dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and Exts. A1 to A4 were marked from the side of the plaintiffs. Defendants had examined DWs1 and 2 and Exts. B1 to B12 were marked. Exts. C1 to C4 are the commission report and plan. Commissioner was examined as CW1. 6. On an evaluation of evidence in the case, the trial court came to the conclusion that there was no pathway shown as B and C schedule in the plaint and that plaintiffs had no manner of right to use any portion of properties owned by defendants as pathway and the suit was dismissed. 7. The matter was carried in appeal by the plaintiffs as A.S No.7/89 before the Sub Court, Ottappalam. S.A No.243 of 1996 4 The lower appellate court on an independent consideration of the evidence in the case came to the conclusion that the trial court has not erred in any manner and therefore there is no ground to reverse the decree of the trial court. The judgment and decree of the lower courts were confirmed. 8. Aggrieved by the concurrent findings against them, the plaintiffs have come up in appeal. 9. The following questions of law have been formulated in this appeal. "A. When an owner of property assigns a portion of the property lying adjacent to the public road, would not there be an initial presumption in law that the owner would not have given up his right of ingress and egress from the public road to the remaining property in his possession, more so when he is residing therein? B. Whether the courts could deny the right of way to the plaintiff on the ground that the way is not clearly identifiable? C. Should not it be presumed that the owner selling portion of his property having constructed steps for ingress and egress at the common boundary of the transfered portion and remaining property with him, the right of way through the transferred portion of the property to the public road is safeguarded? 10. Learned counsel appearing for the appellant S.A No.243 of 1996 5 relied on the commission report and contended that commissioner had seen four steps on the south border of the house in the plaint A schedule property. House is towards south and also steps on the southern boundary of the property owned by the plaintiff and certified the allegations are true. It is also pointed out that the commissioner's report namely Ext. C3 clearly shows the possibility of existence of the way as claimed by the plaintiffs. 11. Learned counsel appearing for the respondents pointed out that there is nothing in documents to indicate that there was a way in between plots 4 and 5 in plaint C schedule property. 12. Learned counsel drew attention of this Court to the fact that it was not necessary to do so because the plaintiff had access to the public road on the northern side. 13. May be that the commissioner has noticed steps to the property of the plaintiffs on the southern side of their property. But there is no mention of any way in the commissioner' report. There is no pathway discernible from the commission report between plots 4 and 5. S.A No.243 of 1996 6 Merely because steps are noticed, that gives no right to use any portion of defendants property as a way. Both the courts below found that there is no way as alleged in the pliant. Even though the commissioner had inspected the plaint schedule properties on several occasions, no way was located by the Commissioner also. It is true that there are steps on the southern boundary of the property owned and possessed by the plaintiffs. There is nothing to show that they have corresponding pathway running towards the southern side. 14. One cannot omit to note that there is a well laid way on the northern side of the plaintiffs property. Both the courts below have found that there is neither B schedule nor pathway is noticed and that the plaintiffs have other convenient means of access to plaint A schedule property. It is for the plaintiffs to establish that a way exists as alleged by them and they have right to use the said way. Suppressing to note that there was no attempt from the side of the plaintiffs to have the socalled pathway specified, identified and located by the Commissioner. S.A No.243 of 1996 7 15. In the light of these facts and oral evidence in the case there is little merit in the appeal. As rightly pointed out by the learned counsel for the respondents, if as a matter of fact a way was to be provided when Plot No.4 sold to strangers, normally reservation would have been made in the document by which the sale is effected. None of the documents produced by plaintiffs show the existence of the pathway denied by them. 16. The above factors persuaded the courts below to hold that plaint claim was baseless. Moreover, it was seen that agricultural operations where being done in plot No.4 and 5. There is absolutely no indication of any pathway existing or having existed through the properties now owned and possessed by the defendants. The result is that there is nothing to show that the courts below have erred in declining to grant reliefs prayed for by the plaintiffs. As rightly pointed out by the learned counsel for the respondent that findings are essentially questions of fact. There is no nothing to show that findings are perverse or unwarranted by the evidence on record. No substantial questions of law arise for S.A No.243 of 1996 8 consideration in this appeal. The appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE ma