IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 RSA.No. 138 of 2006() --------------------- AS.141/1998 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.92/1996 of MUNSIFF COURT,CHENGANNUR .................... APPELLANTS/APPELANTS/DEFENDANTS: ------------------------------------------ 1. P.C. GEORGE, PALLICKAL KIZHAKKETHL, EDANADU MURI, CHENGANNUR VILLAGE. 2. SARAMMA GEORGE, PALLICKAL KIZHAKKETHIL, EDANADU MURI, CHENGANNUR VILLAGE. BY ADV. SRI.C.B.SREEKUMAR RESPONDENT/RESPONDENT/ PLAINTIFF: ------------------------- CHERIAN KOSHY, PALLICKAL KIZHAKKETHIL, EDANADU MURI, CHENGANNUR, CHENGANNUR TALUK. ADV. SRI.P.HARIDAS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.138 of 2006G --------------------------------------- Dated this 04th day of January, 2010 JUDGMENT Defendants who successively lost in the courts below have come up with this second appeal. 2. Respondent/plaintiff claimed that he got the plaint schedule property as per Ext.A1, partition deed No.2141 of 1970 as B schedule therein. Appellant No.1 got the A schedule in Ext.A1, situated on the east of the schedule property. At the time of partition as per Ext.A1 a pathway having width of 4 feet was provided along the northern side of schedule property for the use of appellant No.1 for access to his property from the public road. According to the respondent, appellants attempted to trespass into the suit property to widen the pathway which necessitated his filing the suit for injunction to prevent such acts of the appellants. Appellants contended that description of the disputed pathway in the plaint schedule is not correct and that its width is not 4 feet. It has a width of about 6 feet. Respondent and appellants have been using the said way for more than 100 years. Appellants claimed that they have acquired a right of easement by prescription over the said way and that respondent has destroyed the barbed wire fencing on the southern side of the pathway. Contending so appellants made a counter claim against the R.S.A.No.138 of 2006 2 respondent. Trial court found against the contention raised by the appellants, granted decree for prohibitory injunction against them and dismissed the counter claim. That has been confirmed by the first appellate court. It is contended in the second appeal that findings entered by the courts below are not correct. It is also contended that the plea of easement by way of prescription over the disputed pathway has not been properly appreciated by the courts below. 3. Ext.A1 states that a pathway having width of 4 feet was provided along northern side of the suit property for the use of appellant No.1. Indisputably that is an easement by way of a grant. Though appellants have contended that they have been using the pathway having width of about 6 feet for the last 100 years, Ext.A1 which is of the year 1970 would stand against that claim since, if the parties were using the pathway having width of more than 4 feet prior to Ext.A1 at a time when the parties were enjoying the suit property and other items as co-owners, there was no possibility of width of the pathway being limited to 4 feet as per Ext.A1. Appellants are parties to Ext.A1 and are bound by it. Rights and liabilities regarding user of the pathway have to be decided with reference to the terms and conditions stated in Ext.A1. Whatever be the alleged user before Ext.A1, parties have confined their right to the pathway referred to in Ext.A1 the width of which is only 4 feet. Therefore, banking upon any alleged user before Ext.A1 appellants cannot set up a plea of easement R.S.A.No.138 of 2006 3 by way of prescription. There is no case or evidence that based on any user after Ext.A1, appellants acquired right of easement by way of prescription in respect of the pathway exceeding width of 4 feet. Commissioner appointed by the trial court has reported that disputed pathway has no uniform width. Ext.A1 provided width of the pathway as only 4 feet. In the absence of any other acceptable evidence, trial court was justified in finding that the right of the parties are governed by Ext.A1 and that what is involved is only an easement by grant in respect of a pathway having width of 4 (four) feet. Relief is granted based on that finding which is legal and proper. No substantial question of law as suggested in the memorandum of second appeal is involved in this appeal. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/