High Court Kerala High Court

Vilasini Kunjamma vs Kochahamed on 9 March, 2007

Kerala High Court
Vilasini Kunjamma vs Kochahamed on 9 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 526 of 2006()


1. VILASINI KUNJAMMA, AGED 61 YEARS,
                      ...  Petitioner

                        Vs



1. KOCHAHAMED, AGED 66 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.GHOSH YOHANNAN

                For Respondent  :SRI.PEEYUS A.KOTTAM

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :09/03/2007

 O R D E R
                     M.SASIDHARAN NAMBIAR, J.

                       ...........................................

                        R.S.A.No.526   OF   2006

                       ............................................

           DATED THIS THE  9th  DAY OF MARCH, 2007


                                  JUDGMENT

Plaintiff in O.S.97/1997 on the file of Munsiff Court,

Muvattupuzha is the appellant. Defendant is the respondent.

The suit was instituted seeking a decree for declaration of right

of easement by prescription over the C schedule way to the

plaint A schedule building belonging to the appellant under

Ext.A1 partition deed dated 4.3.1970. The property to the east

of A schedule building and B schedule property belonged to the

respondent. There is a thodu on the south of A and B schedule

properties, flowing east-west. According to the appellant,

plaint C schedule property has been used by the appellant and

his predecessors openly and peacably as an easement for

more than twenty years without obstruction and thereby

prescribed a right of way by easement of prescription and

respondent has no manner of right to obstruct the usage and

therefore appellant is entitled to get a decree for declaration of

the easement right and a permanent prohibitory injunction

restraining respondent from obstructing the usage.

Respondent in the written statement disputed the existence of

plaint C schedule property and contended that there is no way

RSA 526/2006 2

through B schedule property and appellant has no right of way

and the appellant is not entitled to either get a decree for

declaration or injunction sought for.

2. Learned Munsiff framed the necessary issues. On the

evidence of Pws 1 to 3, Dws 1 and 2 and Ext.A1 and C1 to C3,

learned Munsiff upheld the case of the appellant and granted

decree holding that the appellant has prescribed right of way

by easement of prescription over C schedule property and

restrained respondent from destroying the C schedule way.

Defendant challenged the decree and judgment before District

Court, Ernakulam in A.S.295 of 2005. Learned District Judge

reappreciated the evidence elaborately and analysed each of

the item of evidence which was considered by learned Munsiff

and found that there is no evidence to establish the right of

easement by prescription claimed by appellant. Appeal was

allowed. The decree and judgment passed by learned Munsiff

were set aside and suit was dismissed. It is challenged in this

second appeal.

3. This second appeal is filed challenging the decree and

judgment in A.S.295 of 2005.

4. Learned counsel appearing for the appellant was

heard. The argument of learned counsel was that the reports

RSA 526/2006 3

submitted by the Commissioner shows that there is no other

way except the plaint C schedule way to the plaint A schedule

property. This way is being used by the appellant and his

predecessor for the last forty years and therefore first appellate

court should not have interfered with the decree passed by the

trial court.

5. The learned District Judge has elaborately considered

the evidence in the light of the contentions raised by the

appellant. The property originally belonged to the family of the

appellant. It was divided under Ext.A1 partition deed on

4.3.1970. The plaint A schedule property is item No.1 of the B

schedule of Ext.A1 partition deed. The southern boundary of A

schedule property is thodu and the three other boundaries

shown in Ext.A1 are paddy fields. Item No.1 of A schedule

therein is the property alloted to Narayanan Kartha brother of

appellant. Its northern boundary is thodu and paddy fields on

all other sides. On the south of the plaint A schedule and west

of the B schedule is that property of Narayanan Kartha. The

property which lies to its west is the property of their sister.

Learned District Judge also found that the properties of

appellant and his brother and sister was originally enjoyed as a

compact block and are only paddy fields. Learned District

RSA 526/2006 4

Judge, on the evidence found that if there was a way as claimed

by the appellant, which was being used as of right and as an

easement it would have been enjoyed not only by the appellant,

but by Narayan Kartha as well as their sister. There was no

such case. On appreciation of the entire evidence, it was found

that the appellant did not establish the right of easement by

prescription. C schedule way was found passing through the

thodu and there was no evidence indicating the use of the

property as a way. It is on appreciation of evidence learned

District Judge held that appellant did not establish a right of

way as claimed and dismissed the suit after setting aside the

judgment of the trial court.

I find no substantial question of law involved in the

appeal. Appeal is dismissed in limine.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-