IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 RSA.No. 1416 of 2011 ---------------------------- AS.40/2010 of SUB COURT, PERUMBAVOOR OS.242/2008 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS / RESPONDENTS 1,2,4 TO 6 IN A.S. / DEFENDANTS 1,2,4 TO 6 IN O.S :- --------------------------------------------------------------------------------------------------------------------- 1. SEETHA DEVI, D/O GOVINDAN NAIR, W/O VINOD, MOTHYIKKARA HOUSE, KRISHNA NIWAS, VADAVUKODE VILLAGE, VADAVUKODE P.O, KUNNATHUNADU TALUK. 2. M.K. VINOD, S/O KESAVAN NAIR, MOTHYIKKARA HOUSE, KRISHNA NIWAS, VADAVUKODE VILLAGE, VADAVUKODE P.O, KUNNATHUNADU TALUK. 3. THULASI AMMA, W/O GOVINDAN NAIR, KRISHNA NIWAS, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 4. G. KRISHNAKUMAR, S/O GOVINDAN NAIR, KRISHNA NIWAS, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 5. AMBIKA DEVI, S/O GOVINDAN NAIR, KRISHNA NIWAS, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. BY ADVS. SRI.M.CHATHUKUTTY NAMBIAR SRI.C.CHANDRASEKHARAN RESPONDENTS / APPELLANTS IN A S/ PLAINTIFF IN O S AND DEFENDANTS 7 & 8 : - ------------------------------------------------------------------------------------------------------------------------ 1. KARTHIKA AYYAPPAN, W/O LATE AYYAPPAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. RSA.No. 1416 of 2011 2. REMANI, D/O LATE AYYAPPAN, PHYSICALLY HANDICAPPED, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 3. AMMINI, D/O LATE AYYAPPAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 4. THANKAMMA, D/O LATE AYYAPPAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 5. THANKAPPAN, S/O LATE AYYAPPAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 6. SINDHU, D/O LATE AYYAPPAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 7. SREEKALA, D/O LATE AYYAPPAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 8. MOHANAN, S/O NARAYANAN, MORAKKATTU MOLATH HOUSE, VADAVUKODEKKARA, VADAVUKODE VILLAGE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 9. THAMPI, S/O MATHAI, CHEVATHIL HOUSE, P.O VADAVUKODE, KUNNATHUNADU TALUK. 10. ABRAHAM GEORGE, S/O ABRAHAM PAUL, KADAYATHU KARUTHEDATHU HOUSE, P.O. VADAVUKODE, KUNNATHUNADU TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1416 of 2011 ............................................ DATED THIS THE 22nd DAY OF DECEMBER, 2011 JUDGMENT Defendants in O.S.242 of 2008 on the file of Munsiff Court, Perumbavoor are the appellants. Respondents are the plaintiffs. Suit was filed for a declaration of right of way by easement of prescription over plaint E schedule way which is part of plaint D Schedule property belonging to the appellants contending that it is the way available to plaint A, B and C schedule properties belonging to the respondents. Plaint A schedule property originally belonged to Ayyappan under Exhibit A1 sale deed dated 19.09.1986. First respondent is his widow and respondents 2 to 8, their children. Plaint B schedule property was purchased under Exhibit A3 sale deed in 2002 and Plaint C schedule property under Exhibit A5 sale deed in 2003. Respondents contended that Plaint E schedule property, which forms the western portion of plaint D schedule property belonging to appellants, has been used a way to reach plaint A, B and C schedule properties and they and their predecessors have been using that way openly, RSA 1416/2011 2 peaceably and uninterruptedly for more than 30 years as of right and as an easement and appellants have no right to cause any obstruction to the way. Contending that appellants have unloaded granites and caused obstruction to the way, decree for mandatory injunction was sought for removal of the obstruction. A decree for permanent prohibitory injunction was also sought restraining appellants from causing obstruction. 2. Appellants resisted the suit contending that no way exists as plaint E schedule way through the plaint D schedule property belonging to them and respondents or their predecessors have not been using any such way. It was contended that the way to plaint A to C schedule properties is towards the east and there is also a way towards the south and the respondents have no right of way through plaint D schedule property and therefore they are not entitled to a decree for declaration of right of way over plaint E schedule property and they are not entitled to the decree for mandatory and prohibitory injunction sought for. 3. Learned Munsiff on the evidence dismissed the suit finding that though a way exists as plaint E schedule, there is no RSA 1416/2011 3 evidence to prove that respondents have been using that way for more than 20 years prior to the institution of the suit. Learned Munsiff relied on the evidence of PWs 1 and 2 and found that PW1 admitted that a way exist towards the east, through the property of Karuthedath family and the evidence of PW2 shows that he had gone to Plaint A schedule property through that way and Karuthedath family sold that property to one Benny in 2002 and thereafter Benny constructed a compound wall obstructing that way and Plaint E schedule way is being claimed thereafter. It was found that the case of respondents that Plaint E schedule way is the only way and no other way is available is not correct as there is a way towards the south also by entering the puramboke land and the puramboke thodu finding that a slab is placed over the thodu. Therefore it was found that respondents are not entitled to a right of way by easement of prescription over plaint E schedule way and they are not entitled to the decree sought for. Suit was dismissed. Respondents challenged the decree before Sub Court, Perumbavoor in AS 40/2010. Learned Sub Judge on re-appreciation of the evidence found that RSA 1416/2011 4 learned Munsiff non suited the respondents on the ground that a way exists towards the east, ignoring that existence of an alternative way as such is not a ground to deny a right of way by easement of prescription, if the ingredients of right of way by easement of prescription are established. Analyzing the evidence, learned Sub Judge found that as rightly found by trial Court, plaint E schedule way exists and it is part of plaint D schedule property belonging to the appellants. Learned Sub Judge also found that, evidence of PW1 with the recitals in Exhibit A1 and the admission of appellants establish that even before purchase of the plaint A schedule property by Ayyappan, Ayyappan with his family were residing in the plaint A schedule property. Learned Sub Judge also found that evidence of PW1 corroborated by PW2 establish that they have been using plaint E schedule way for more than 20 years prior to the institution of the suit and they have been using it openly, peaceably and uninterruptedly as of right and as an easement. In the light of this finding, learned Sub Judge held that respondents are entitled to a decree for declaration of right of way as well as RSA 1416/2011 5 decree for mandatory injunction to remove the obstruction caused and also a permanent prohibitory injunction from causing further obstruction to the way. 4. Learned sub Judge found that though a right of way is available to the plaint A schedule property as plaint B and C schedule properties were purchased respectively in 2002 and 2003, no right of way is available to the said properties. Hence appeal was allowed declaring right of way over plaint E schedule property to plaint A schedule property by easement of prescription. Decree for mandatory injunction to remove the obstruction caused declaring the right of way by easement of prescription as well as decree for permanent prohibitory injunction was granted. It is challenged in the second appeal. 5. Learned counsel appearing for appellants was heard. The vehement argument of the learned counsel is that first appellate court did not properly appreciate the evidence and ignored the well merited findings of the trial court. Learned counsel relied on the observations of the learned Munsiff made relying on the evidence of PW1 and PW2 and argued that evidence of PW1 RSA 1416/2011 6 establishes that the way to the plaint A schedule property is towards the east and not west and respondents are claiming a way towards the west through plain D schedule property, only when Benny who purchased the eastern property from Karuthedath family in 2002, caused obstruction to the way and there is no evidence to prove that respondents have been using plaint E schedule way for more than 20 years and at any rate as of right and as an easement and therefore the decree granted by the first appellate court is not sustainable. 6. On hearing the learned counsel and going through the judgments of the courts below, I find that the evidence was properly appreciated by the first appellate court. Though the learned Munsiff found that respondents did not establish a right of way over plaint E schedule property by easement of prescription, it was based on the evidence of PW1, with regard to the existence of a way towards the east and also based on the finding that access is possible to plaint A schedule property through the puramboke land crossing the puramboke thodu on the south. As rightly found by the first appellate court, learned RSA 1416/2011 7 Munsiff failed to note that while considering a plea of easement of prescription, question of an alternative way available as such is not very relevant except to appreciate the credibility of the evidence that the disputed way has been used by the plaintiffs for the requisite period. Even if there is an alternative way available to the plaint A schedule property, if the evidence establishes that respondents have been using the plaint E schedule way as an access to the plaint A schedule property for more than 20 years openly, peaceably and without interruption, and that too, as of right and as an easement, the existence of a way towards the east will not destroy a right of way by easement of prescription. The crucial question is whether plaint E schedule way exists and if it exists, whether respondents and their predecessors have been using that way openly, peaceably and without interruption and that too, as of right and as an easement for more than 20 years prior to the institution of the suit. 7. Though appellants contended before the courts below that plaint E schedule way does not exists, both trial court and first appellant court based on appreciation of the evidence RSA 1416/2011 8 entered a factual finding that plaint E schedule way exists. In the light of the evidence on record that fact cannot be disputed. The only question is whether the existing plaint E schedule way, has been used by the respondents or their predecessors for more than 20 years prior to the institution of the suit. Though exhibit A1 sale deed by which plaint A schedule property was purchased by Ayyappan, the predecessor in interest of the respondents, only in 1986, exhibit A1 itself shows that Ayyappan has been in possession of the property earlier to the execution of exhibit A1 sale deed. First appellate court found that even the witness examined by the appellants admitted that earlier to the execution of exhibit A1, Ayyappan has been in possession of the plaint A schedule property. Learned Sub Judge appreciating the evidence of PWs 1 and 2 found that their evidence establish that they have been using plaint E schedule way openly and peaceably as of right and as an easement for more than 20 years prior to the institution of the suit. Learned Munsiff did not consider this aspect of the case and unfortunately wrongly gave the main thrust on whether a way exists either towards the east or RSA 1416/2011 9 towards the south. The portion of the findings of the trial court relied on by the learned counsel shows that when PW1 was examined, he was asked whether a way exists to the house of Karuthedath family from the east which lies to the east of the plaint A schedule property. PW1 answered positively. He was further asked whether one could enter the property of Karuthedath family and thereafter enter the way available to the house of Karuthedath family. PW1 answered it also affirmatively. It was also asked whether through that way entry is not possible to plaint A schedule property. PW1 admitted that also. It is based on this evidence, learned Munsiff found that a way exists to the plaint A schedule property from the east and as that way was obstructed by the subsequent purchaser in 2002, plaint E schedule property is being claimed. But learned Munsiff did not rely on any portion of the evidence to enter such a finding. Similar is the case with regard to appreciation of the evidence of PW2. When PW2 was asked whether he had gone to the plaint A schedule property by using the eastern way, he admitted it. But that does not mean that no way exists to plaint A schedule RSA 1416/2011 10 property along the west through plaint D schedule property. First appellate court correctly appreciated the evidence and entered a factual finding that respondents and their predecessors have been using plaint E schedule way for more than 20 years openly, peaceably and without interruption as of right and as an easement. In the light of this finding and the further finding that the way has been obstructed by the appellants, first appellate court rightly granted a decree for mandatory and prohibitory injunction, after declaring the right of way to plaint A schedule property over plaint E schedule way. In the light of these findings, based on the evidence, I do not find any substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk