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
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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
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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
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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/-