IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 RSA.No. 367 of 2008(B) --------------------------------- [AS.NO.117/2005 OF PRL.SUB COURT, KOZHIKODE, OS.NO.526/2002 OF ADDL.MUNSIFF COURT-II,KOZHIKODE] .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- VIRUPPIL RAMAN, AGED 62 YEARS, S/O.KANDAKUTTY, 'SOPANAM', NELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.THOMAS ANTONY. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. V.BALAN, AGED 65 YEARS, S/O.KANDADUTTY, VIRUPPIL HOUSE, NELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. 2. U.C.JOSEPH, S/O.UPPAN MAKKAM CHACKO, 28/115, NELLIKODE AMSOM AND DESOM, KOZHIKODE TALUK. (IMPLEADED AS PER THE ORDER IN IA 1037/06 DATED 20/07/2007). R1 & R2 BY ADV. SMT.SREEKALA KRISHNADAS. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED,THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.367 of 2008-B ------------------------------------- Dated 29th July 2010 Judgment The plaintiff, whose suit for a pathway through the property of the defendant, who was non-suited by the Additional Munsiff's Court-II, Kozhikode is the appellant. The essential facts necessary for the disposal of the appeal are as follows : 2. The plaintiff obtained the plaint A schedule property by virtue of a settlement deed executed by his mother namely, Ext.A1 dated 17.06.1980. On the same date, the executor had executed three other documents also, namely, Exts.A6, A7 and A8 in favour of her other children. As per one of the said documents, the defendant obtained property on the eastern side of the plaint A schedule property, which is shown as plaint B schedule. According to the plaintiff, there is a pathway running on the eastern side of the property owned and possessed by the RSA 367/08 2 defendant and his means of access to the outside road is through that pathway, which runs through the property of the defendant, shown as plaint C schedule property. Alleging that the defendant was trying to prevent him from using the said pathway and claiming that it is the only means of access to the plaint A schedule property, the suit was laid. 3. The defendant resisted the suit. He denied the existence of plaint B schedule pathway and contended that the plaintiff never had a pathway through his property and no portion of his property was ever used as a means of access to the plaintiff's property. It was pointed out by him that there was a common pathway left by the executor on the eastern and southern sides of the properties given to various children and that provided access to the plaintiff's property also. It was therefore, pointed out that the plaintiff has no manner of right over the property owned and possessed by him. On the above grounds, the defendant prayed for a dismissal of the suit. RSA 367/08 3 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendant examined DW1 and no documents were marked from his side. Exts.C1 to C4 Commissioner's report and plan were also marked. 5. The Trial Court, on a consideration of the evidence in the case, came to the conclusion that the claim of the plaintiff that there was a pathway shown as plaint C schedule property through the property owned and possessed by the defendant is not established and accordingly dismissed the suit. 6. The plaintiff took up the matter in appeal as AS No.117/05 before the Principal Sub Court, Kozhikode. The said court, on an independent evaluation of the evidence, found the findings of the Trial Court to be sustainable and correct and accordingly dismissed the appeal. Hence this Second Appeal. RSA 367/08 4 7. In this Second Appeal, the following question of law is seen formulated : “When the easement of necessity of the plaintiff is proved by evidence, is it correct to dismiss the claim of easement on certain perverse inferences, totally discarding the evidence adduced ? 8. The learned counsel for the appellant pointed out that the courts below have erred both on facts and in law in non-suiting the plaintiff. According to the learned counsel, a bare perusal of Ext.C4 plan is sufficient to show that the only means of access to the plaint A schedule property owned and possessed by him is through plaint C schedule pathway, which runs through the property of the defendant. The learned counsel also pointed out that the courts below were not justified in coming to a conclusion that he had means of access to the property through the south eastern corner of the property namely plaint A schedule. A well is situated in that portion of the property RSA 367/08 5 and there is no space for him to enter plaint A schedule property. Therefore, the findings of the courts below need to be interfered with, it is contended. 9. The learned counsel for the respondent, on the other hand, contended that the present situation is only a creation of the plaintiff himself and he has to blame himself for the present state of affairs. According to the learned counsel for the respondent, a careful look at the various settlement deeds namely Ext.A1, A6, A7 and A8 would clearly show that wherever the executor felt that a way needs to be provided for access to the respective properties, she has provided so. In the case of plaintiff, who was given A schedule property the deed does not specifically mention about the access to his property. If as a matter of fact, there was no means of access to that property, obviously, the executor would have taken care to provide one in Ext.A1. Attention of this court was drawn to Ext.C1 and it was pointed out that in fact, it could be seen that the way which runs on the southern side of the RSA 367/08 6 property owned by Ramankutty and the two brothers of the plaintiff, provides access to plaint A schedule property also. The well, which was situated in the plaint A schedule property was a small one, the circumference of which was increased and made a bigger one. At the same time, the plaintiff put up a compound wall in the south eastern corner, blocking his passage to plaint A schedule property. Having done so, it comes with little grace to claim a pathway through his property. 10. After hearing the learned counsel on both sides and on going through the records and the Judgments of the courts below, it is felt that there is considerable force in the contentions raised by the learned counsel for the respondent. As rightly pointed out by the learned counsel, four settlement deeds were executed by the same person in favour of her four sons. In two of the documents, where it was necessary to provide for the way, the executor has specifically done so. In other cases, it is conspicuously missing. That gives an indication that it is not necessary to RSA 367/08 7 specifically mention the way for them because they have means of access. If as a matter of fact, it was necessary to provide way through B schedule property, one should reasonably think that the executor would have provided way for them in the documents for both the plaintiff as well as the defendant. 11. Both the courts below have considered the Commissioners' reports in considerable detail. It is true that in Ext.C4 plan, the Commissioner has located the alleged C schedule pathway which the plaintiff claims to be, is the only means of access to his property. But, interestingly enough, the Commissioner says that there are no sings of that pathway being used by any person and also that there are two coconut trees standing on the pathway. One may here recall the claim of the plaintiff in his pleadings to the effect that he and his family members had been using the pathway from 1980 onwards. The suit is of the year 2002. Obviously, if what he claims is true, he must have been using the property for the last 22 years and that would RSA 367/08 8 definitely have left signs/marks of the long usage. The fact that no signs/marks are seen, clearly shows that the claim is a hollow. 12. The plaintiff has produced Exts.A2 and A3 in respect of his claim. As rightly noticed by the courts below they are of little significance for they are self serving documents. The other documents produced before the courts below were the documents produced before the Corporation concerned for getting the permit and licence for the construction of the building in plaint A schedule property. Exts.A1, A6, A7 and A8 documents were executed in respect of the property owned and possessed by Ramankutty, which is on the southern side of plaint A schedule property. Obviously, there must have been access to that property. It is reasonable to believe that from there, the plaintiff must have had access to plaint A schedule property. That, precisely must have been the reason as to why no separate way was either mentioned or granted in the documents namely Exts.A1 and A8 by which RSA 367/08 9 properties were given to the plaintiff and Balan. 13. Both the courts below have appreciated the evidence in the proper perspective and have come to the conclusion that the plaintiff is not entitled to claim a way through the property of the first defendant. It is essentially, a finding fact. There is nothing to show that the findings are vitiated due to any reasons. It is not shown that either irrelevant matters have been taken into consideration or some relevant matters have been omitted to be taken into consideration, by the courts below. There is nothing to show that the findings are either perverse and need interference by this Court under S.100 CPC. The result is that this appeal is without any merits and it is liable to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE sta RSA 367/08 10 RSA 367/08 11