IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 RSA.No. 466 of 2009() --------------------- AS.31/2007 of SUB COURT,NEYYATTINKARA OS.433/2004 of PRL.M.C.,NEYYATTINKARA .................... APPELANTS/APPELLANTS/DEFENDANTS 1 AND 2: -------------------------------------------------- 1. CHELLAYYAN NADAR STEPHEN, AGED 79, PLANTHOTAM PODUVAL VEEDU, THIRUPURATHOOR DESOM, DO. VILLAGE, NEYYATTINKARA TALUK. 2. SURESH STEPHEN, S/O.STEPHEN, PLANTHOTTAM PODUVAL VEEDU, THIRUPURATHOOR DESOM, DO.VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.AJITH KRISHNAN SRI.S.MOHAMMED AL RAFI RESPONDENTS/ RESPONDENTS/ PLAINTIFFS & DEFENDANTS 3 & 4: --------------------------------------------- 1. SIMON, AGED 76, S/O.CHELLAYYAN NADAR, PLANTHOTTAM, PODUVAL VEEDU, THIRUPURATHOOR DESOM & VILLAGE, NEYYATTINKARA TALUK. 2. ALEX PLAUL, AGED 34, S/O.BHARGAVAN, ALEX BHAVAN, THIRUPURATHOOR DESOM, DO.VILLAGE, NEYYATTINKARA TALUK. 3. TITUS, AGED 68, S/O.CHELLAYYAN NADAR, T.S.COTTAGE, DO. DO. 4. ANIL TITUS, AGED 39, S/O.TITUS, DO. DO. ADV. SRI.V.SURESH FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER I.A. NO. 1066 OF 2009 IN R.S.A. NO. 466 OF 2009 DISMISSED 9.6.2009 SD/- HARUN-UL-RASHID,JUDGE HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.466 of 2009 ---------------------------------------- Dated this the 9th day of June, 2009 JUDGMENT Defendants 1 and 2 in O.S. 433/2004 on the file of the Principal Munsiff, Neyyattinkara are the appellants herein. This appeal is directed against the judgment and decree in A.S. 31/2007 on the file of the Sub Court , Neyyattinkara The suit was filed for mandatory and prohibitory injunction and declaration. The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. The plaint A schedule property belonged to Chellayyan Nadar and on his death the property devolved upon his wife and 4 children including the 1st plaintiff and the 1st defendant. In the partition deed No.1228/1980 was effected and plaint B schedule property was allotted to the 1st defendant. 2nd defendant is the son of 1st defendant. B schedule item which was allotted to the 1st defendant includes a common burial ground and out of that property 10 Cents excluding the burial ground was exchanged between 1st defendant and 1st plaintiff . The stipulation in Ext.A1 partition deed was that the burial ground shall be used by all members of the family and none of the parties have any right to do any act so as to disturb the use of burial ground. C schedule in the plaint is the burial ground. In Ext.A1 partition deed a pathway from the road R.S.A. No. 466 of 2009 -2- leading to the burial ground was earmarked with said measurements The said pathway is scheduled as D. It is also contended by the plaintiff that the 'B' schedule pathway is an easement by grant and the defendants have no right to contend otherwise. According to the plaintiff the D schedule pathway was destroyed by the defendants and they have made an attempt to place the pathway through B schedule item No.4 belonging to 2nd plaintiff, that a gate was placed in order to obstruct the pathway to B schedule item No.4. Therefore the plaintiffs prayed for a mandatory injunction to remove the gate so that the pathway shall be opened for ingress and egress of the parties concerned. 3. According to the defendants, they never destroyed B schedule pathway, never tried to open three links pathway through B schedule item No.4, that the pathway is being used by the plaintiffs due to the generosity of the defendants and that the gate was not fixed for closing the D schedule pathway. They also contended that if it is found that the plaintiffs have any right over the pathway, they have no objection in allowing the plaintiffs to use the plaint D schedule pathway. . 4. The Commissioner appointed by the trial court located the pathway as described in the partition deed. The Commissioner has deposed that the report was prepared on the basis of description in the document as per lie and as per the re-survey plan. It is true that there are differences between Ext.C1(a) plan and re-survey plan as admitted by the parties. It is also not disputed that when there is a dispute regarding the R.S.A. No. 466 of 2009 -3- re-survey plan and actual lie of the property the actual lie shall prevail unless there is a prayer for recovery of possession. The courts below are convinced of the facts that the burial ground and pathway were provided for the common use of all the family members and the burial ground was used for burying the family members. The fact finding courts concluded that the pathway leading to the burial ground is still to be used and the necessity is absolute. Relying on Ext.A1 the courts below also held that there is stipulation regarding the pathway and so it is to be strictly followed. Besides the above, the lower appellate court also noted the fact that the defendants have expressed their willingness in their written statement to provide access to the parties to the partition deed in case it is found that the way is in existence . Both courts rightly held that the user of the pathway is not shown to have extinguished and the plaintiff is entitled to get a decree as prayed for. I am of the view that the findings arrived at by the courts below are on the basis of facts, materials and evidence. I find that there are no grounds to interfere with the findings of the courts below. No question of law much less any substantial question of law arises for consideration in this appeal. There is no scope for invoking Section 100 of the C.P.C This appeal fails and accordingly dismissed (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.466 of 2009 ---------------------------- JUDGMENT 9th June, 2009