IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 FAO.No. 304 of 2006() --------------------- AS.111/2002 of PRINCIPAL SUB COURT,PARAVUR OS.644/1998 of MUNSIFF COURT,ALUVA .................... APPELLANT/RESPONDENT/PLAINTIFF: --------------------------------------------------- ALPHONSA, AGED 49, W/O.THALIYATH DAVIS, MULLASSERY KARA, CHENGAMANADU VILLAGE, REPRESENTED BY MATHEW, AGED 50 YEARS, S/O.DEVASSY, PAYYAPPILLY VEEDU, KURUMASSERY KARA, PARAKKADAVU VILLAGE. BY ADV. SRI.B.JAYASANKAR SRI.S.K.HARISH RESPONDENT(S): APPELLANT/DEFENDANT: ----------------------------------- CHACKO, AGED 35 YEARS, S/O.THOMMAN, BHARANIKULANGARA VEEDU, KARIPPASSERI KARA, PARAKKADAQVU VILLAGE. ADV. SRI.KURIAN ANTONY EDASSERY SMT.ANN EMIL JOSEPH SRI.BOSE K.THACHIL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.BHAVADASAN, JJ. -------------------------------------------------------- FAO 304 OF 2006 -------------------------------------------------------- Dated 8th July 2009 Judgment BHAVADASAN, J. Aggrieved by the order of remand passed by the lower appellate court, the plaintiff in OS No.644/98 before the court below, has come up in appeal. The parties are hereinafter referred to as they are arrayed before the trial court in OS No.644/98. 2. The plaintiff claims right to use Plaint B schedule pathway. Though, initially the claim was one based on easement by grant, it was changed as one for right of use as a public pathway. The plaintiff pointed out that the B schedule property is not a public pathway and he has a right to use the pathway as of right. Since the defendant was interfering with the said right of the plaintiff, the suit was laid. 3. The suit was resisted by the defendant, pointing out that the plaintiff had no right to use the B schedule pathway as easement right by grant. He also contended that the plaintiff has FAO 304/06 2 got other means of access to her property. The trial court raised the necessary issues, PW1 to 3 were examined and Exts.A1 to A10 were marked. From the side of the defendants, DW1 to 4 were examined and Exts.B1 to B9 were marked. Exts.C1 to C3 are the commissioner's report and plan. 4. The trial court, on an appreciation of the materials before it came to the conclusion that the plaintiff had a right to use the B schedule pathway and decreed the suit, restraining the defendant permanently from interfering with the right of the plaintiff to use the pathway in question. The defendant carried the matter in appeal in AS No.111/02 before the Principal Sub Judge, North Paravur. The appellate court on appreciation of the materials before it found that the survey sketch is necessary for resolving the dispute between the parties and since that has not been obtained, remanded the matter to the trial court. The said order is assailed in this appeal. 5. The learned counsel for the appellant pointed out that it is unnecessary to procure the survey report because the available materials on record would show the right of the plaintiff FAO 304/06 3 to use the pathway in question. According to him, Ext.A9, which is the judgment of this court in SA No.95/97 would clearly show that the defendant has no exclusive right to use the pathway. Therefore, his contention is that the plaintiff is entitled to use the pathway as of right. 6. Per contra, the learned counsel for the respondent pointed out that it was after the judgment in the Second Appeal that the plaintiff has cut open a portion on the northern side of her property to gain access to the pathway involved in the suit. He would maintain that the plaintiff has no manner of right to use the said pathway. 7. One should notice that initially the claim was one for easement by grant for the plaintiff. Later, the suit was amended to one for right of use as a public pathway. It is also contended that the claim that the predecessor in interest of the plaintiff had dedicated a portion of the property, is incorrect. 8. The contention of the respondent is that the above claims made by the plaintiff in the suit are not true and she has no manner of right to use the pathway involved in the suit. FAO 304/06 4 9. Ext.A9 would show that the defendant in the present suit/the plaintiff therein had no exclusive right to use the pathway. There is no dispute regarding B schedule pathway shown in the plaint. Nowhere in the written statement, it is seen mentioned that B schedule is not being used as a pathway. This is not disputed. It is the pathway in Ext.A9 which is also involved in the suit. 10. In the facts and circumstances, it was quite unnecessary for the lower appellate court to have remanded the matter to the trial court. In fact, the dispute is confined to the right to use a pathway which is already in existence. In the light of Ext.A9, the defendant cannot be heard to say that he has exclusive right to use the pathway involved in the suit and that the plaintiff has no manner of right to use the same. It is found that the property over which the pathway lies does not belong to the defendant and that he has no exclusive right to use the same. One finds it difficult to understand how the defendant could restrain the plaintiff from using the pathway. Of course, it is true that the plaintiff has other means of access to her FAO 304/06 5 property from the eastern side, but that is not a ground to deny her right to use the pathway especially when the defendant has no exclusive right to use the same or the right to exclude any one else from the use of the pathway. In the circumstances, the remand was unnecessary. Hence this appeal is allowed. The impugned order is set aside and the judgment and decree of the trial court are restored. No order as to costs. P.R.RAMAN, JUDGE P.BHAVADASAN, JUDGE sta FAO 304/06 6