IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1216 of 2009()
1. SREEKALA, D/O. MADHAVAN NAIR,
... Petitioner
Vs
1. AYYAPPAN NAIR, S/O. KUMARA PILLAI,
... Respondent
For Petitioner :SRI.D.SAJEEV
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/01/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.1216 of 2009
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Dated this the 13th day of January, 2010.
JUDGMENT
The Second Appeal arises from concurrent finding entered by the courts
below and the decree for prohibitory injunction granted in favour of the
respondent/plaintiff. Property scheduled in the plaint is five (5) cents in survey
No.1258/A2-9 which the respondent claimed title and possession as per
assignment deed No.5369 of 1978. Appellant is the neighbour who owns five (5)
cents on southern side of the suit property. Respondent claimed that the suit
property has well defined boundary on southern side and alleged that appellant
is using a pathway starting from Udiyannoor road. Appellant is attempting to
trespass into the suit property and hence the suit. Appellant claimed that
respondent is not in possession of the entire suit property and that the plaint
schedule description taking in a pathway over which she has a right of easement
by way of grant and used by her and predecessors-in-interest. Trial court found
that there is no evidence of existence of any such pathway as claimed by the
appellant, not to say about the alleged grant. Accordingly the suit was decreed
in favour of the respondent. Judgment and decree of the trial court were
challenged by the appellant before learned Additional District Judge in appeal.
In appeal appellant produced six (6) documents of which the certified copy of the
documents of title were marked as Exts.B1 to B5. There was a request for
remand of the case to the trial court which the first appellate court refused after
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perusing Exts.B1 to B5 and holding that even those documents are not sufficient
to uphold the claim of easement by way of grant. Consequently the appeal was
dismissed. That judgment and decree are under challenge in this Second
Appeal raising by way of substantial questions of law whether the first appellate
court is justified in re-appreciating the evidence on the basis of the additional
evidence without raising proper issues and without giving the appellant
opportunity to adduce evidence and whether finding of the first appellate court
that appellant is not entitled to the easement by way of grant is justified.
Learned counsel contends that appellant was not given sufficient opportunity to
adduce evidence.
2. It is not disputed that appellant had not produced in the trial court
the documents she relied and produced in the first appellate court. Appellant
filed O.S.No.506 of 2003 against the respondent seeking a decree of prohibitory
injunction against trespassing into the property of appellant. There, an exparte
decree was passed in favour of the respondent. The report of the advocate
commissioner obtained in that suit also was produced in the first appellate court
but that was not allowed to be marked in evidence. What is in evidence on the
side of appellant is Exts.B1 to B5.
3. It is not very much in dispute that the suit property originally
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belonged to the wife of respondent. Herself and mother of appellant are sisters
and the properties belonging to them were partitioned as per Ext.B1, partition
deed No.2372 of 1971. 23 cents in Sy.No.1258/A1 & 2 were partitioned among
the sharers. 5.5.cents was allotted to party No.1, mother of the appellant. 12
cents was allotted to a brother of the wife of the respondent. Another 5.5. cents
was allotted to party No.9, wife of the respondent. She assigned that 5.5. cents
to the respondent as per Ext.A1. H schedule in Ext.B1 was allotted to the wife of
the respondent which is the suit property. Ext.B2 is the CC of sale deed
No.2434 of 1988, dated 21.7.1988 executed by one Sukumaran Nair in favour
of Gopinathan Nair. Ext.B2 refers to a right of access along with western side of
the plaint schedule property. Ext.B3 is the copy of assignment deed executed by
the assignee under Ext.B2 in favour of the appellant. There also there is
reference to a right of access through the western side of the suit property. But
the first appellate court found that mention of right of way in Exts.B2 and B3 will
not confer any right by grant since concededly, no such right of way was
granted as per Ext.B1. In Ext.B1 the right of way provided is only to the A
schedule therein and there is no mention of any right of way through the H
schedule which is the present suit property. Ext.B1 having not provided any right
of way through any portion of the plaint schedule property (H schedule in
Ext.B1), the sharers who got right of other items under Ext.B1 cannot by
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themselves create a grant by stating so in Exts.B2 and B3 as rightly found by the
first appellate court. Exts.B2 and B3 cannot bind the respondent or affect the
suit property. They are self serving documents created by the predecessors-in-
interest of the appellant. No other right is pleaded by the appellant as against the
respondent. It is in the above circumstances that the first appellate court found
against the prayer of appellant and dismissed the appeal. In the light of what I
have stated no substantial question of law is involved in this Second Appeal
requiring interference.
The Second Appeal is dismissed in limine.
I.A. No.2772 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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