IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
## **THE HONOURABLE MR. JUSTICE K.T.SANKARAN**
WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930
## **RSA.No. 636 of 2005(A)**
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_( AS.62/2004 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.407/1999 of MUNSIFF COURT, CHENGANNUR )_
APPELLANT/APPELLANT/3RD DEFENDANT:
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VIJAYAN NAIR, PADINJARE VALAVOOR HOUSE, PULIYOOR MURI, PULIYOOR VILLAGE, CHENGANNOOR, REP. BY POWER OF ATTORNEY HOLDLER MANIYAMMA, W/O. VIJAYAN NAIR, PADINJARE VALAVOOR HOUSE, PULIYOOR P.O., CHENGANNUR.
BY ADV. SRI.M.NARENDRA KUMAR
ADV. SMT.LEENA KRISHNAN
RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1,2 & 4:
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1. M.P. VASUDEVAN, SIVASADANAM HOUSE, PULIYOOR, PULIYOOR VILLAGE, CHENGANNUR.
2. GOPALAKRISHNAN NAIR, PADINJARE VALAVOOR HOUSE, PULIYOOR P.O., CHENGANNUR.
3. ROY OOMMEN,
- MANALEL HOUSE, CHERIYANADU MURI, CHERIYANADU VILLAGE, CHENGANNUR.
4. ANNAMA MATHAI,
- VATHIYATHU HOUSE, CHERIYANADU MURI, CHERIYANADU VILLAGE, CHENGANNUR.
- R1 BY ADV. SRI.B.RENJITHKUMAR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **K.T. SANKARAN, J.**
**..................................................... R.S.A. No. 636 OF 2005 ...................................................... Dated this the 29[th] October, 2008**
## **J U D G M E N T**
The third defendant in O.S.No. 407 of 1999 on the file of the court of the Munsiff, Chengannur challenges in this Second Appeal the concurrent judgments and decrees of the courts below. The suit was filed by the first respondent for permanent prohibitory injunction restraining the defendants from taking any vehicle through the plaint item No.2 pathway or from annexing any portion of plaint item No.2 pathway to their property or from destroying boundaries of plaint item No.2 pathway..
2. Plaint schedule Item No.1 admittedly belongs to the plaintiff. There exists a pathway having a width of 2.5 links on the southern side of plaint item No.1 and southern side of the property of the fourth defendant and on the southern side of the property of one Sukumara Pillai. The property on the southern side of the pathway (having a width of 2.5 links ) belonged to Kamalakshy Amma, mother of the third defendant. The
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property of the plaintiff, the property of Sukumara Pillai and the property of 4[th] defendant as well as that of Kamalakshy Amma originally belonged to one family. By transfer, Kamalakshy Amma, plaintiff, fourth defendant and Sukumara Pillai got the properties referred to above. On the southern side of the 2.5 links' width pathway, Kamalakshy Amma was holding 40 cents of land. In the year 1976, as per Ext. A1, Kamalakshy Amma and her son assigned an extent of 2.25 cents of land to the plaintiff. The property covered by Ext. A1 lies immediately on the southern side of the pathway having a width of 2.5 links. Plaint Item No.2 consists of pathway having 2.5 links as well as the property covered by Ext. A1. According to the plaintiff, Ext. A1 property was purchased for the purpose of widening the existing pathway and to provide a motorable road to his property.
3. The contention raised by the appellant (third defendant) is that there exists a public pathway from time immemorial having a width of 2.5 links. The pathway did not end near the property of the plaintiff, but it goes further westwards. The
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plaintiff as well as the defendants have equal rights to use that pathway. After the pathway was widened annexing Ext. A1 property, the appellant (the third defendant) and other parties would get same right to use the pathway as before.
4. It has come out in evidence that there existed a road on the eastern side of the plaint item No.2 pathway and that of the property on the southern side, which originally belonged to Kamalakshy Amma. It has also come out in evidence that after the death of Kamalakshy Amma, the properties are in the possession of her legal representatives. Even before the death of Kamalakshy Amma, it is stated that an extent of 5 cents was sold to her son. It has also come out in evidence that on the southern side of the plaint item No.2 there is a compound wall. There is no entry from plaint item No.2 to any of the houses on the southern side.
5. According to the plaintiff, the appellant could claim only a right to have access to the road on the eastern side and such a right cannot be claimed through plaint item No.2. Even if the
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property on the southern side of the pathway was subsequently converted into different plots, that is not a ground for claiming a right of way through plaint item No.2, if the defendants had no legal right to use plaint item No.2 as a pathway.
6. The trial court, after considering the oral and documentary evidence in detail held that the plaintiff is entitled to get a decree for injunction against defendants 1 to 3. However, the trial court held that the fourth defendant has a right to use the pathway having a width of 2.5 links since his property lies on the northern side of the pathway. The pleadings, facts and circumstances of the case and evidence on record were elaborately considered by the trial court in arriving at the conclusion that the plaintiff is entitled to get permanent prohibitory injunction. On appeal, the lower appellate court also considered the facts and circumstances of the case and evidence on record and held that the trial court was right in holding that the plaintiff is entitled to get a decree for injunction.
7. The case that originally there existed a public pathway
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having a width of 2.5 links is not established by the defendants. Ext. A1 property was annexed to the then existing pathway is an undisputed fact. However, if it is not proved that there existed a public pathway, defendants 1 to 3 would not be entitled to claim a right of way as claimed by them. After the 2.5 links' width pathway is cut off from the southern property by virtue of Ext. A1 sale deed executed by Kamalakshy Amma and her son, they could not claim any right to have an entry to the northern pathway except in case they could establish an easement of necessity. It is clear from the facts that the property owned and possessed by Kamalakshy Amma was bounded by a public road on the eastern side. The fact that the southern property having an extent of 40 cents was subsequently dealt with by Kamalakshy Amma and her legal representatives is not a ground to claim a new right through Ext. A1 property so as to have access to the 2.5 links' width pathway. The pathway having a width of 2.5 links was not being used by defendants 1 to 3 after the execution of Ext. A1 sale deed. Defendants 1 to 3 cannot
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claim any right over Ext.A1 property and therefore they cannot claim any right to enter into the plaint schedule item No.2 and to use it as a motorable pathway.
8. The courts below held that no easement of necessity was established. It was also held that the property owned and possessed by Kamalakshy Amma had access to the public road on the eastern side and only by subsequent changes that property got severed into different plots. It was also noticed by the courts below that after the death of Kamalakshy Amma, her legal representatives partitioned the properties and at that time, Ext. A1 property was excluded from the purview of partition. It would also indicate that no rights were claimed by the legal representatives of Kamalakshy Amma including the appellant in respect of Ext.A1 property or the pathway which took in Ext. A1 property as well. The courts below held that defendants 1 to 3 failed to prove any easement of necessity or any right over the plaint item No.2. The rights of the fourth defendant were protected by the courts below.
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9. Learned counsel for the petitioner relied on _**Mahalinga Bhat vs. Dooja Souza**_ [ **1994 (1) KLT 197]** and contended that the appellant is entitled to use the pathway as a public pathway even if the public pathway was subsequently widened taking in the plaintiff's property. After going through the facts of the case in 1994 (1) KLT 197, I am of the view that the said decision would not apply to the facts of the present case. In _**Mahalinga Bhat vs. Dooja Souza**_ [ **1994 (1) KLT 197** ), there existed a public pathway and it was widened by taking in some portion of the property belonging to one of the parties . It was in that context, this court held that merely because the pathway was widened using a portion of the plaintiff's property, right of enjoyment of the pathway by the public cannot be denied. In the present case, it is not established by the appellant or by any of the defendants that there existed any public pathway. Therefore, the dictum laid down in _**Mahalinga Bhat vs. Dooja Souza I**_ **[** 1994 (1) KLT 197] is not applicable to the present case.
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I am of the view that the courts below have rightly held that the plaintiff is entitled to a decree for injunction. The judgments of the courts below are based on the facts. The courts below have considered all the relevant aspects and evidence on record. No substantial questions of law would arise for consideration. The Second Appeal lacks merit and it is accordingly dismissed, however without any order as to costs.
**K.T. SANKARAN, JUDGE.**
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