IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 SA.No. 397 of 1995(E) --------------------- AS.29/1991 of I ADDL. DISTRICT COURT, KOLLAM OS.1125/1987 of PRL.MUNSIFF'S COURT, KOLLAM .................... APPELLANT(S): APPELLANT:PLAINTIFF: ------------------------------------------------------------ SULEKHA BEEVI, HABEEBA MANZIL, JONAKAPURAM, VALIYAKADA CHERRY, KOLLAM. (D I E D) - LR'S IMPLEADED: *ADDL.APPELLANT: A2. RAHIYANATH BEEVI, D/O. SULEKHA BEEVI, PUTHANVEETIL, NEDUMPANCHALCHERRY, KOLLAM DISTRICT. *ADDL.APPELLANT IS IMPLEADED AS THE LR OF DECEASED SOLE APPELLANT AS PER SEPARATE ORDER DTD. 5/11/2002 IN CMP.NO.853/02. BY ADVS. SRI.V.BHASKARAN PILLAI, SMT.ANI JOSEPH. RESPONDENT(S): RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------- 1. ABDUL RAHIM, SON OF ABDUL RAZAK, CHARUVILA HOUSE, PALLIMON CHERRY, KOLLAM. 2. HAZIAM BEEVI, WIFE OF ABDUL RAHIM, CHARUVILA HOUSE, PALLIMON CHERRY, KOLLAM. 3. ABOOBAKER KUNJU ISHA UMMA, VILAYIL VEEDU, PALLIMON CHERRY, KOLLAM. R2 & R3 BY ADV. SRI.P.B.SURESH KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. --------------------------------------- S.A. No.397 OF 1995 ---------------------------------- Dated this the 16th day of July, 2010 JUDGMENT Faced with the concurrent findings against her, the plaintiff has come up in appeal. 2. According to the plaintiff, the plaint A schedule item No. 1 belongs to 1st defendant, plaint A schedule item No.2 belongs to 2nd defendant and plaint A schedule item No. 3 belongs to 3rd defendant. Both plaint A schedule items 1 and 2 are lying contiguously. On the west of plaint A schedule items 1 and 2 lies plaint A schedule item No.3. On the north of plaint A schedule items 1 and 2 lies plaint B schedule. Plaint A schedule lies on the northern side of Quilon-Ayoor Road. There is an old കയല separating plaint schedule item number 2 and plaint B schedule property. The plaint B schedule property lies six feet lower than plaint A schedule. In between plaint schedule items 1 and 2 and A schedule item number 3 there is a pathway scheduled as C schedule which starts from Quilon-Ayoor road and goes S.A. No.397 OF 1995 2 north. The plaintiff is enjoying the C schedule path way for the last 50 years for her access to plaint B schedule property. The plaintiff has enjoined the pathway openly and continuously. For the last 2 or 3 days defendants are trying to put up a building in plaint C schedule property so as to obstruct the plaint C schedule pathway. If they are allowed to do so plaintiff will be put to irreparable injury and loss. Hence the suit. 3. Defendants resisted the suit. They pointed out that plaintiff has never used plaint C schedule pathway. Description of plaint B schedule property is incorrect. There are two pathways for the access to plaint B schedule property. One on the western side of the way starts from the northern side of Quilon-Ayoor road and it runs towards north and it reaches on the south eastern corner of plaint B schedule property and it further goes north and ends in the south western corner of property of Lekshmanan. Plaintiff was using that pathway but she reduced this pathway into her possession and subsequently Nanu Sreedharan and others have reduced other portion as their property. Plaintiff S.A. No.397 OF 1995 3 has got another pathway, which touches the north western portion of plaint B schedule property. They prayed that the suit may be dismissed. 4. The trial court framed necessary issues for consideration. The evidence consists of testimony of PWs.1 to 6 and Exts.A1 to A11 were marked on the side of plaintiff. Defendant examined as DW1. Exts.C1 and C2 are the Commission Reports and mahazar. 5. The trial court, on appreciation of the evidence in the case, came to the conclusion that plaintiff is not entitled to any relief and the suit was dismissed. 6. The plaintiff carried the matter in appeal as A.S.No.29 of 1991 before the District Court, Kollam. Lower appellate court on re-evaluation of the evidence found that the plaint C schedule pathway is not in existence and confirmed the decree of the trial court. Hence the second appeal. 7. According to the appellants counsel, C schedule pathway is only means of an access to her property. C schedule pathway runs from the south western corner of S.A. No.397 OF 1995 4 the plaint B schedule property, runs southwards in between plaint A schedule items 1 and 2 and plaint A schedule item 3 and reaches the Quilon-Ayoor road on the south. Commissioner has filed Ext.C1 and C2 report and mahazar Commissioner was examined as PW5. It is seen that at the time when Ext.A5 Commission Report in another suit prepared there was a pathway. It is claimed that after Ext.A9 decree the present C schedule pathway has been blocked. That is the reason why plaintiff had filed the present suit. 8. The plaintiff had examined PW5, Commissioner in earlier suit. The trial court was not inclined to accept his evidence. PW6 in his report stated that the plaint pathway is not in existence. The age of the pathway has not been mentioned by both the Commissioners. The court below has noticed that plaint B schedule property lies at a lower level by 6 feet from plaint A schedule items 1 and 2. The trial court noticed that there are no steps to enter into the B schedule from C schedule pathway apart from the fact that plaintiff has not been able to establish the existence of a S.A. No.397 OF 1995 5 pathway. The trial court also held that plaintiff has failed to establish that she had used the way for statutory period. Appellate court also found that that there was no pathway in existence. 9. It is relevant to note that the plaintiff purchased the property in 1977. Document of title does not show C schedule pathway as one of the boundaries. Plaintiff has contended that her predecessors-in-interest were using the plaint C schedule pathway. The lower appellate court has observed that plaint C schedule pathway was not in existence at the time of filing the suit. Probably going by A5 Commission Report in O.S.1027 of 1987 there might have been a pathway. But as of now there is nothing to show that the C schedule pathway exists. The level difference between the properties also makes the existence of pathway improbable. PW2 to 4 have stated about the existence of a way. But that suit in which Ext.A5 was filed was later compromised. PW6 the Commissioner in the present suit as deposed that he was unable to locate any way as alleged by the plaintiff. The predecessors-in-interest S.A. No.397 OF 1995 6 of the plaintiff were not examined to show that there was a way it was being used for access to plaint schedule property. 10. Apart from the above facts plaintiff claimed both prescriptive right of easement and easement by necessity and there is a lack of pleading regarding the easement by necessity. Moreover both cannot go together. It show that plaintiff was not certain about his rights. The finding of the court below that the plaintiff has failed to establish prescriptive right of easement is fully justified. Both the courts below on an elaborate consideration of evidence came to the conclusion that plaintiff has failed to establish the existence of the way. Those are findings of fact. No substantial question of law arises for consideration in this appeal. There is no merit in this appeal and it is only to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. mns