In this second appeal, the appellant, who sued for fixation of boundary and injunction claiming easement by prescription over a pathway, lost the trial and appeal. This High Court upheld the dismissal on the finding that the plaintiff's predecessor did not use the pathway for more than 11 years to establish the prescriptive right.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938
RSA.No. 531 of 2015 ()
AGAINST THE JUDGMENT IN AS 35/2009 of SUB COURT, CHENGANNUR
AGAINST THE JUDGMENT IN OS 185/2005 of MUNSIFF COURT,CHENGANNUR
APPELLANT: APPELLANT/PLAINTIFF:
K.M.YOHANNAN
S/O.MATHAI, KANDANKULANGARA VEETTIL, PERINGILIPURAM THEKKUM MURI, ENNAKKADU VILLAGE, CHENGANNUR TALUK
BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1. D.VARGHESE KANDANKULANGARA VEETTIL, PERINGILIPURAM THEKKUM MURI, ENNAKKADU VILLAGE, CHENGANNUR TALUK - 680 001.
RSA.No. 531 of 2015 ()
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2. KERALA GOVERNMENT REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA.-688001
R1 BY ADV. SRI.N.ASHOK KUMAR R2 BY ADV. GOVERNMENT PLEADER SRI. JOBY JOSEPH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SMM
P.B.SURESH KUMAR, J.
R.S.A.No.531 of 2015
-----------------------------------------------Dated this the 7th day of April, 2016
JUDGMENT
The plaintiff in a suit for fixation of boundary and injunction is the appellant in this second appeal.
the plaintiff. The plaint schedule item No.2 property which lies on the northern side of the plaint schedule item No.1 property belongs to the first defendant. The plaint schedule item No.3 is described in the plaint as a pathway which starts from the northern public road and terminates at the plaint schedule item No.1 property through the puramboke land lying on the western side of the plaint schedule item No.2 property and through a portion of the plaint schedule
R.S.A.No.531 of 2015 2
item No.2 property. The case of the plaintiff is that he has acquired a right of easement by prescription over the plaint schedule item No.3 pathway and that the defendants are causing obstructions to the user of the plaint schedule item No.3 pathway for access to the plaint schedule item No.1 property. The reliefs claimed in the suit, in the circumstances, were a declaration of the right of easement by prescription of the plaintiff over the plaint schedule item No.3 property and a decree for fixation of boundary separating the plaint schedule item No.3 pathway with the plaint schedule item No.2 property owned by the first defendant.
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their property for access to the plaint schedule item No.1 property. As such, according to the defendants, the plaintiff has not acquired any right to use any portion of the property of the first defendant for access to the plaint schedule item No.1 property. In the light of the said contentions, the defendants have raised a counter claim also in the written statement claiming a decree of mandatory injunction directing the plaintiff to restore the plaint schedule item No.2 property to its original position as also a decree of prohibitory injunction restraining the plaintiff from using any portion of the plaint schedule 2 property as a pathway to the plaint schedule item No.1 property.
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appellate court, on a re-appraisal of the evidence on record confirmed the decision of the trial court and hence this second appeal by the plaintiff.
R.S.A.No.531 of 2015 5
schedule item No.2 property for access to the plaint schedule No.1 property. The courts below found that the evidence tendered by DW3 was reliable and acceptable. As such, the courts below cannot be faulted for having declined the relief sought for by the plaintiff in the suit.
In the said view of the matter, I do not find any merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.
P.B.SURESH KUMAR, JUDGE.
smm
2 issues framed by the court
Whether the appellant could establish a prescriptive right of easement by prescription over a pathway passing through the respondent's property.
Whether the lower courts erred in relying on DW3's testimony that no prescriptive use had been acquired.
K.M.YOHANNAN
D.VARGHESE
KERALA GOVERNMENT
P.B.SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
