IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 RSA.No. 1306 of 2005 ------------------------------ AS.253/2003 OF THE DISTRICT COURT,KOZHIKODE OS.88/1994 OF THE MUNSIFF'S COURT-I, KOZHIKODE .................... APPELLANT/(APPELLANT/PLAINTIFF) ---------------------------------------------------- PUTHIYA KOVILAKAM PARAMBIL MOIDEENKOYA, S/O.KANIYAMMUKKU PARAMBIL MUHAMMEDKUTTY, KASABA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS ------------------------------------------------------------------- 1. PUTHIYA PONMANICHINTAKATH AYISHABI, D/O.AHAMMEDKOYA HAJI, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 2. KOZHIKODE CORPORATION, REPRESENTED BY ITS COMMISSIONER, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 3. OJINTAKATH ABDUL RAZAAK, S/O.SRAJINTAKATH AHAMMED KOYA, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 4. T.V.ABDUL NAZAR, S/O.T.V.MUHAMMED HAJI, TIRUR AMSOM DESOM, TIRUR TALUK. 5. T.V.LAILA, D/O.T.V.MUHAMMED HAJI, DO.DO. 6. T.V.SALEENA, D/O.T.V.MOHAMMED HAJI,DO.DO 7. T.V.MANZOOR, S/O.T.V.MUHAMMED HAJI, DO.DO. 8. KOOLATH KADEEJA, W/O.T.V.MUHAMMED HAJI, DO.DO. 9. NALAKATH JAMEELA, W/O.T.V.MUHAMMED HAJI, DO.DO. R3 TO R9 BY ADV. SRI.P.N.SREENIVASAN SRI.P.RAMACHANDRAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/01/2008, ALONG WITH RSA NO. 153 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J --------------------------------------------- R.S.A.Nos.1306 of 2005 & 153 of 2007 --------------------------------------------- Dated this the 18th day of January, 2008 JUDGMENT Moideenkoya, plaintiff in O.S.No.88 of 1994 on the file of Munsiff's Court-I, Kozhikode is the appellant in R.S.A.No.1306 of 2005. Plaintiffs in O.S.No.38 of 1994 are the appellants in R.S.A.No.153 of 2007. Appellant in R.S.A.No.136 of 2005 is the first defendant in O.S.No.38 of 1994. Appellants in R.S.A.No.153 of 2007 are defendants 4 to 9 in O.S.No.88 of 1994. O.S.No.38 of 1994 was filed seeking a decree for permanent prohibitory injunction contending that plaint B schedule is the way provided under Ext.A2 partition deed and respondents who are assignees of the other sharers of Ext.A2 partition deed are not entitled to cause any obstruction to the pathway. O.S.No.88 of 1994 was filed seeking a decree of injunction restraining respondents in R.S.A.No.1306 of 2005 from causing any obstruction to the plaint schedule property therein and also for a mandatory injunction to remove the obstruction, contending that plaint B schedule property is the way provided under Ext.A2 partition deed and being the assignees of the other sharers to whom item 2 of the plaint property was allotted under Ext.A2, they are not entitled to cause any obstruction and the illegal obstruction caused is to be removed by a mandatory R.S.A.Nos.1306/2005 & 153/2007 2 injunction. Both sides in their respective written statements resisted their claim contending that the respective plaint B schedule property is not the pathway provided under Ext.A2, but the plots in plaint A schedule in the respective suits are the pathway provided under Ext.A2. Learned Munsiff on the evidence of PW 1, Dws.1 to 3 and Exts.A1 to A3, B1 to B10(a) and C1 to C8(a), dismissed both the suits holding that though Ext.A2 provides that one of the sharer is entitled to have a right of way through the property allotted to the other sharer, from Ext.A2 it is not possible to fix the pathway so provided and the respective plaint B schedule property in the respective suits is not proved to be the pathway provided under Ext.A2 and both the plaintiffs are not entitled to the respective decree sought for in their suits. Both the suits were dismissed. 2. Challenging the dismissal of their suits, respective plaintiffs filed A.S.No.253 and A.S.No.301 of 2003. The learned District Judge on reappreciation of the evidence confirmed the findings of learned Munsiff and dismissed both the appeals. It is challenged in the respective appeals. R.S.A.No.1306 of 2005 is filed against dismissal of O.S.No.88 of 1994 as confirmed in A.S.No.253 of 2003. R.S.A.No.153 of 2007 is filed against the dismissal of O.S.No.38 of 1994 as confirmed in A.S.No.301 of 2003. 3. Notice before admission was ordered in R.S.A.No.1306 of R.S.A.Nos.1306/2005 & 153/2007 3 2005 and the respondents appeared. Learned counsel appearing for the appellants in both the appeals were heard. 4. Though both parties admitted that under Ext.A2 a pathway is provided, there is dispute with regard to the identity of the pathway so provided. When appellants in R.S.A.No.153 of 2007 would contend that plot B as demarcated by the Commissioner in Ext.C8 plan is the way so provided, case of the appellant in R.S.A.No.1306 of 2005 is that it is not plot B, but the southern portion of plot A in continuation of plot B upto the north western corner of plot C, is the way so provided. The trial court on the evidence found that from the recitals in Ext.A2 it is not possible to fix either plot B as the way or the southern portion of plot A, which lies to the west of plot B as the way so provided. The learned District Judge also elaborately gone into the question and found that finding of the trail court is perfectly correct and from Ext.A2 it is not possible to fix either plot B as claimed by the appellants in R.S.A.No.153 of 2007 or the southern portion of plot A, as claimed by the appellant in R.S.A.No.1306 of 2005 as the pathway. It is for that reason that courts below dismissed both the suits. 5. Heard learned counsel appearing for the parties in both the appeals. I do not find that any substantial question of law is involved in these appeals. As rightly found by the courts below, both the R.S.A.Nos.1306/2005 & 153/2007 4 plaintiffs in O.S.Nos.38 of 1994 and 88 of 1994 claimed a right by easement of grant in the respective suits contending that it is the way provided under Ext.A2. As the identity of the way is disputed, courts below decided the question whether the respective plaint B schedule property in the suits is the way provided under Ext.A2. It was specifically found by courts below that from the recital in Ext.A2, it is not possible to fix the pathway. Ext.A2 provides that the sharers shall not obstruct the way to item Nos.1 to 4 covered under Ext.A2 partition deed. Ext.A2 does not give any light to fix from where the pathway originates and through which all parts of the properties allotted to the sharers the pathway runs and where it terminates. Unless there is material to fix the identity of the pathway so provided, claim for right by easement by grant raised by the parties cannot be upheld. As the identity of the way provided under Ext.A2 is a question of fact both the courts below on proper appreciation of the evidence found that the pathway cannot be identified or fixed with reference to the recitals in Ext.A2. That finding of fact cannot be interfered by reappreciation of evidence. Even if it is attempted to reappreciate the evidence, from Ext.A2 it is not at all possible to fix the pathway. It is admitted by the parties that even without the disputed pathway claimed by them, there is a direct access to both plot C belonging to appellant in R.S.A.No.1306 of 2005 and plot A R.S.A.Nos.1306/2005 & 153/2007 5 belonging to appellants in R.S.A.No.153 of 2007. In such circumstances courts below have rightly dismissed both the suits and then appeals. The appeals are, therefore, dismissed. M.SASIDHARAN NAMBIAR, JUDGE vns