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.
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S.A No.243 of 1996
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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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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
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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.
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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
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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.
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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.
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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
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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
