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N.Raman vs Prabhakaran on 20 August, 2010

Kerala High Court
N.Raman vs Prabhakaran on 20 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 243 of 1996()



1. N.RAMAN
                      ...  Petitioner

                        Vs

1. PRABHAKARAN
                       ...       Respondent

                For Petitioner  :SRI.A.P.CHANDRASEKHARAN (SR.)

                For Respondent  :SRI.SABU THOZHUPPADAN

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :20/08/2010

 O R D E R
                      P.BHAVADASAN, J.
                      -------------------------
                      S.A No.243 of 1996
                      --------------------------
               Dated this the 20th August, 2010

                        J U D G M E N T

Plaintiffs who were non-suited by the courts below

are the appellants.

2. According to the plaintiffs, Plot Nos.1 to 5

shown in the rough sketch to the plaint originally

belonged to the 1st plaintiff who obtained purchase

certificate in respect of the said properties. They were

residing in the house in Plot No.1. First plaintiff has

assigned Plot No.4 to Kalyanikutty Amma as per sale deed

No.1599/79. She had duly assigned the property to the

defendants. First plaintiff had sold Plot No.5 to 2nd

defendant as per sale deed No.2369/80, i.e Ext.B1.

According to the plaintiffs, when Plot No.4 was sold to the

2nd defendant, the 1st plaintiff retained Plot No.2 shown

in the sketch having an east-west measurement of 1 kole

and a north south measurement of 7 3/4 koles for ingress

and egress to Plot No.1 and sold the remaining property.

Possession of the respective portions sold by the plaintiffs

were given to the vendees leaving a pathway. It is averred

that there was a Panchayat road on the southern side and

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2

there was a way leading from panchayat road to the

property of the plaintiff i.e. shown as plaint B schedule

property. Pointing out that the defendants had no right

to obstruct the plaintiffs in keeping the possession of plaint

B schedule property, the the suit was laid.

3. Defendants resisted the suit. They admitted that

Plot No.4 as alleged in the plaint was sold to Kalyanikutty

Amma by the 1st plaintiff as per sale deed No.1599/1979

which was subsequently assigned to Mammu as per sale

deed No.2040/1981. Finally it came to vest with

defendants. They also pointed out that Plot No.5 was sold

to 2nd defendant as per sale deed No.2369/1980.

Disputing the averments in the plaint, it was pointed out

that there was no such pathway shown as B schedule left

out of the properties of each of the vendees as per the

documents. It was pointed out that the plaintiff has other

means of access to this property.

4. Plaint B and C schedule properties alleged in

the plaint is contrary to the extent and the Plaintiff has

access to the Panchayat road on the southern side.

According to the defendants, plaintiffs have no manner of

S.A No.243 of 1996
3

right to use any portion of the properties as pathway nor

any other manner. It is also pointed out that 2nd

defendant had constructed a compound wall on the

northern side. Defendants contended that there was no

pathway as alleged in the plaint and they prayed for

dismissal of the suit.

5. The trial court raised necessary issues for

consideration. The evidence consists of the testimony of

PWs 1 and 2 and Exts. A1 to A4 were marked from the side

of the plaintiffs. Defendants had examined DWs1 and 2 and

Exts. B1 to B12 were marked. Exts. C1 to C4 are the

commission report and plan. Commissioner was examined

as CW1.

6. On an evaluation of evidence in the case, the

trial court came to the conclusion that there was no

pathway shown as B and C schedule in the plaint and that

plaintiffs had no manner of right to use any portion of

properties owned by defendants as pathway and the suit

was dismissed.

7. The matter was carried in appeal by the

plaintiffs as A.S No.7/89 before the Sub Court, Ottappalam.

S.A No.243 of 1996
4

The lower appellate court on an independent consideration

of the evidence in the case came to the conclusion that the

trial court has not erred in any manner and therefore there

is no ground to reverse the decree of the trial court. The

judgment and decree of the lower courts were confirmed.

8. Aggrieved by the concurrent findings against

them, the plaintiffs have come up in appeal.

9. The following questions of law have been

formulated in this appeal.

“A. When an owner of property assigns a
portion of the property lying adjacent to the
public road, would not there be an initial
presumption in law that the owner would not
have given up his right of ingress and egress
from the public road to the remaining property
in his possession, more so when he is residing
therein?

B. Whether the courts could deny the
right of way to the plaintiff on the ground that
the way is not clearly identifiable?

C. Should not it be presumed that the
owner selling portion of his property having
constructed steps for ingress and egress at the
common boundary of the transfered portion and
remaining property with him, the right of way
through the transferred portion of the property
to the public road is safeguarded?

10. Learned counsel appearing for the appellant

S.A No.243 of 1996
5

relied on the commission report and contended that

commissioner had seen four steps on the south border of

the house in the plaint A schedule property. House is

towards south and also steps on the southern boundary of

the property owned by the plaintiff and certified the

allegations are true. It is also pointed out that the

commissioner’s report namely Ext. C3 clearly shows the

possibility of existence of the way as claimed by the

plaintiffs.

11. Learned counsel appearing for the respondents

pointed out that there is nothing in documents to indicate

that there was a way in between plots 4 and 5 in plaint C

schedule property.

12. Learned counsel drew attention of this Court to

the fact that it was not necessary to do so because the

plaintiff had access to the public road on the northern side.

13. May be that the commissioner has noticed

steps to the property of the plaintiffs on the southern side

of their property. But there is no mention of any way in the

commissioner’ report. There is no pathway discernible

from the commission report between plots 4 and 5.

S.A No.243 of 1996
6

Merely because steps are noticed, that gives no right to

use any portion of defendants property as a way. Both the

courts below found that there is no way as alleged in the

pliant. Even though the commissioner had inspected the

plaint schedule properties on several occasions, no way

was located by the Commissioner also. It is true that there

are steps on the southern boundary of the property owned

and possessed by the plaintiffs. There is nothing to show

that they have corresponding pathway running towards

the southern side.

14. One cannot omit to note that there is a well laid

way on the northern side of the plaintiffs property. Both

the courts below have found that there is neither B

schedule nor pathway is noticed and that the plaintiffs have

other convenient means of access to plaint A schedule

property. It is for the plaintiffs to establish that a way

exists as alleged by them and they have right to use the

said way. Suppressing to note that there was no attempt

from the side of the plaintiffs to have the socalled pathway

specified, identified and located by the Commissioner.

S.A No.243 of 1996
7

15. In the light of these facts and oral evidence in

the case there is little merit in the appeal. As rightly

pointed out by the learned counsel for the respondents, if

as a matter of fact a way was to be provided when Plot

No.4 sold to strangers, normally reservation would have

been made in the document by which the sale is effected.

None of the documents produced by plaintiffs show the

existence of the pathway denied by them.

16. The above factors persuaded the courts

below to hold that plaint claim was baseless. Moreover, it

was seen that agricultural operations where being done in

plot No.4 and 5. There is absolutely no indication of any

pathway existing or having existed through the properties

now owned and possessed by the defendants.

The result is that there is nothing to show that the

courts below have erred in declining to grant reliefs

prayed for by the plaintiffs. As rightly pointed out by the

learned counsel for the respondent that findings are

essentially questions of fact. There is no nothing to show

that findings are perverse or unwarranted by the evidence

on record. No substantial questions of law arise for

S.A No.243 of 1996
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consideration in this appeal. The appeal is without merits

and it is accordingly dismissed. There will be no order as

to costs.

P.BHAVADASAN, JUDGE

ma

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