IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 RSA.No. 1196 of 2005() ---------------------- A.S. NO. 1430 OF 2002 OF DISTRICT COURT, PALAKKAD O.S. NO. 39 OF 1990 ON THE FILE OF THE MUNSIFF COURT, CHITTUR APPELLANTS ----------------------- 1. BASHEER, S/O.MATHARSA, @ PAPPA SAIPU, KRISHNAPURAM MARKET, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, NOW RESIDING AT VALIYA VALLAMPATHY VILLAGLE, CHITTOOR TALUK. 2. ANWAR BASHA, S/O.MATHARSA @ PAPPA SAIPU, KRISHNAPURAM MARKET, KOZHINJAMPARA VILLAGE, CHITTUR TALUK, DO. DO. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR RESPONDENT(S): -------------------------- JAMEELA, AGED 46 YEARS, D/O.LATE SULEHA BEEVI, KRISHNAPURAM MARKET, KOZHINJAMPARA VILLAGE, CHITTUR TALUK. ADV. SRI.V.CHITAMBARESH FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, ALONG WITH R.S.A. NO. 1228 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A.Nos. 1196 and 1228 of 2005 * * * * * * * * * * * * * * * * * * Dated: 5-01-2008 JUDGMENT R.S.A. 1196 of 2005 is filed by the plaintiffs in O.S. 39 of 1990 on the file of the Munsiff's Court, Chittur. They are defendants 2 and 3 in the connected suit filed as O.S. 37 of 1990. O.S. 37 of 1990 was filed by a husband and wife by name Yousuff and Jameela seeking permenant prohibitory injunction restraining the appellants herein from trespassing into the plaint schedule property admeasuring 3 ½ cents in R.S. 626/20 of Kozhinjampara village of Chittur Taluk in Palakkad District. O.S. 39 of 1990 filed by the appellants was one for perpetual injunction restraining the said Jameela and her now deceased mother Sulekha Beevi from trespassing into the plaint schedule property shown as a cart track proceeding from P.W.D. road called Kozhinjampara - RVP Puthur Road and running east-west on the south to the courtyard of the appellant's property on the north comprised in R.S. No. 626/20. R.S.A.Nos. 1196 and 1228 of 2005 -:2:- 2. The trial court dismissed both the suits on the ground that the respective suit properties were not properly identified. On appeal by the plaintiffs in both the suits as A.S. No. 143 and 145 of 2002, the lower appellate court confirmed the decree passed in O.S. No. 39 of 1990 but reversed the decree in O.S. 37/90 and decreed the said suit. 3. Except raising a contention that the appellants are entitled to use the cart track proceeding from Kozhinjampara R.V.P. Puthur road running east-west on the south of the property comprised in R.S. 626/21 and proceeding northwards after cutting across the plaint schedule property in O.S. 37 of 1990 comprised in R.S. No. 626/20 and reaching the appellant's property on the further north and comprised in R.S. 626/8, the appellants did not put forward any easement by way of prescription or a right by way of grant. The lower appellate court has on the basis of the title deeds as well as Ext.C6 (a) Survey Plan and C6 report come to the conclusion that the plaint schedule property in O.S. 37/1990 lying in RS. 626/20 belongs to the respondents. If so, a right to use the cart track passing through the said property cannot be claimed by the appellants unless they satisfactorily establish a grant in their favour or a right which has ripened into a prescriptive easement or any other mode known to law. There is a R.S.A.Nos. 1196 and 1228 of 2005 -:3:- panchayath road starting from Kozhinjampara R.V.P. Puthur road and proceeding northwards and ending in the property of the appellants comprised in R.S. 626/8. The said Panchayath road is comprised in R.S. 626/13. When the said Panchayath road is providing access to the appellants from the P.W.D. road namely the Kozhinjampara R.V.P. road, in the absence of any established right , the appellants were not entitled to claim a right to use the cart-track starting from the P.W.D. road and running parallel to the said Panchayath road and cutting across the property of the respondents. The lower appellate court was perfectly justified in decreeing O.S. 37/1990 and dismissing O.S. 37/1990 filed by the appellants. No question of law much less any substantial question of law arises for consideration in these seconds appeals. The questions of law formulated in these memorandum of appeals do not arise for consideration in this Second Appeal which are accordingly dismissed in limine. Dated this the 5th day of January, 2008. SD/-V. RAMKUMAR, (JUDGE) /true copy/ ani. R.S.A.Nos. 1196 and 1228 of 2005 -:4:-