IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 SA.No. 157 of 1997(B) --------------------- AS.63/1993 of SUB COURT, QUILANDY OS.222/1987 of MUNSIFF COURT, QUILANDY .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------------- C. ACHUTHAN NAIR, EROTHUKANDY HOUSE, KAVUMTHARA AMSOM, KAVIL DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT/APPELLANT/IST DEFENDANT: -------------------- 1. CHAKKARA KULANGARA UNNI, VANGALAM CHALIL HOUSE, KAVUNTHARA AMSOM, KAVIL DESOM, KOYILANDY TALUK, KOZHIKODE DIST. 2. CHAKKARA KULANGARA PARAMESWARAN, CHAKKARA KULANGARA, KAVUMTHARA AMSOM, -DO- -DO- ADV. SMT.PRABHA R.MENON FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.142/98 IN SA.NO.157/97 ---------------- DISMISSED 09/06/2010 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. ------------------------------ S.A.NO.157 OF 1997 ------------------------------- DATED THIS THE 9TH DAY OF JUNE, 2010 JUDGMENT Plaintiff in O.S.No.222/87 on the file of the Munsiff's Court, Koyilandy is the appellant. The suit was filed for declaration of easement right by prescription and for consequential injunction. The trial court decreed the suit declaring that the plaintiff has right of way over B schedule property and the lst defendant is permanently restrained from interfering with the plaintiff's right of way over plaint B schedule property. In the appeal preferred by the lst defendant the Lower Appellate Court re-appreciated the contentions of the parties and held that the plaintiff has failed to prove that he has been using the pathway for the prescribed period of 20 years. The Lower Appellate Court set aside the decree and judgment of the trial court and dismissed the suit. The parties hereinafter referred are the plaintiff and defendants as arrayed in the suit. -2- S.A.157/99 2. The plaint A schedule property admittedly belongs to the plaintiff. He purchased the said property by assignment deed dated 29/5/1974, marked as Ext.A1. It is the plaintiff's case that his assignor was residing in the plaint A schedule property till the date of assignment in his favour. According to the plaintiff, plaint B schedule is the pathway used by him and his assignors for ingress and egress to the residence situated in the plaint A schedule property. It is also pleaded that the lst defendant by two separate documents in the years 1977 and 1979 purchased two plots lying in between the B schedule pathway. The defendants filed a joint written statement denying the averments in the plaint and contended that the plaintiff is not entitled to have the right of way declared. They denied the claim of the plaintiff that he is entitled to declaration of easement right. They also denied the averment that the plaintiff and his predecessor-in- interest are using plaint B schedule varamba as a -3- S.A.157/99 pathway. 3. The plaintiff and lst defendant adduced evidence in support of their respective stands. On the side of the plaintiff Pws.1 to 3 were examined and Exts.A1 to A3 were marked. The lst defendant was examined as DW-1, his assignor was examined as DW-2 and Exts.B1 to B4 were marked on the side of the defendants. Exts.C1 to C4 reports and plan were marked as court exhibits. 4. The suit was filed in the year 1987. The allegations in the plaint are that the defendants are trying to obliterate the existing pathway over which the plaintiff has acquired prescriptive easement right. The plaint B schedule pathway appears to be a narrow strip of varamba dividing two separate holdings, one held by Kunhikrishnan Nair and other by Ibrayi. During the years 1977 and 1979 the lst defendant occupied these two plots as per Exts.B1 and B2 assignment -4- S.A.157/99 deeds. It is the case of the plaintiff that after acquiring Ext.B2 plot, the lst defendant is trying to make these two separate holdings into a single item by demolishing the existing pathway, over which he has acquired his right. 5. The lst defendant contended that the disputed pathway is only one of the varambas available in the paddy field and the disputed varamba has been never used by the plaintiff as a pathway and even if it is assumed so, he has not acquired easement right by prescription over the same. The lst defendant also contended that the plaintiff has got alternative way and the same would lead him to the panchayat road which is situated on the north of the properties involved in the suit and the two plots purchased by the lst defendant. The trial court as well as the Lower Appellate Court appreciated the evidence on record. Pws.2 and 3 are the persons who have knowledge about the user of the pathway. The lst defendant was examined as DW-1. -5- S.A.157/99 DW-2 is the assignor of the lst defendant. Plaintiff, who was examined as PW-1, testified that he was unable to examine his assignor, since her whereabouts are not known. PW-1 also testified that one Kunhiraman Nambiar was also staying in the dominant tenament along with his assignor, he died two years before trial and therefore he could not examine him also. In support of his case plaintiff examined Pws.2 and 3 and held that they are not independent witnesses and their evidence cannot be relied on toto as observed by the learned Munsiff. The Lower Appellate Court held that the evidence of Pws.2 and 3 cannot be made use for substantiating the plaintiff's case that Kunhiraman Nambiar and the assignor of the plaintiff were staying together and that they were using the disputed pathway for a considerable period as prescribed by law. The Lower Appellate Court also observed that the plaintiff never produced voters' list or other convincing evidence in support of his contentions. The Lower -6- S.A.157/99 Appellate Court believed the evidence of DW-2, who is the assignor of the lst defendant. DW-2 is a person, who has direct knowledge regarding the lie of the properties covered by Exts.B1 and B2 and he appears to be having acquaintance with the property for a considerable time at least upto the date of execution of Ext.A1. DW-2 is a man aged 73 years. The Lower Appellate Court observed that DW-2 appears to have reasonable knowledge about the surroundings of the disputed properties. The Lower Appellate Court observed that Pws.2 and 3 have even expressed their inability to speak any fact which was in existence prior to l6 years and that their evidence would not help the plaintiff to establish that his assignor was using the disputed plot for her ingress and egress. No justifiable reasons are stated by the plaintiff in not examining the persons, who are the owners of the adjoining properties. From Exts.C1 and C3 plans, it can be seen that Manappat Haji, one Balan, Damodaran etc. are owning -7- S.A.157/99 and holding the properties near to the plaint A schedule property and B schedule pathway. The Lower Appellate Court also appreciated the other evidence on record and held that the evidence of Pws.2 and 3 are not helpful to improve the plaintiff's specific case. The Appellate Court further observed that the plaintiff should have examined any of the persons, who got acquaintance with the disputed properties and pathway. The Lower Appellate Court also relied on the evidence of DW-2 to the effect that there was no walkable pathway or a varamba on the southern boundary of the property of Manappatt Haji. The court below also examined the commissioner's reports and plans and the same were relied on for the purpose of entering the findings. The Lower Appellate Court chose to differ from the conclusions and findings arrived at by the trial court. The very same materials were considered and appreciated in detail by the Lower Appellate Court. The Lower Appellate Court also -8- S.A.157/99 examined the question as to whether the plaintiff has been using the disputed pathway for more than 20 years as prescribed under Section 15 of the Easement Right. For that purpose the Lower Appellate Court appreciated Exts.B3, B4 and A3 and held that even if it is assumed that Exts.A2 and B4 would help the plaintiff to prove the existence of the pathway as alleged, it would not help him to contend that he has been using the pathway for the prescribed period of 20 years. 6. Heard the contentions of both sides and perused the materials on record. I am of the view that the learned Sub Judge has appreciated the materials on record in the right perspective and held that the plaintiff is not entitled for a decree declaring easement right by prescription and consequential injunction. The relevant aspects and circumstances were considered in detail by the fact finding courts and arrived at the conclusion that the plaintiff failed to establish his easement -9- S.A.157/99 right by prescription. The Lower Appellate reached the findings and conclusions based on the evidence on record. This Court finds that no valid grounds are made out by the appellant to interfere with the findings of fact recorded by the Lower Appellate Court. No questions of law much any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv