MATHAI Vs. LEELA RAJAN

JUDGEMENT

(1.) Plaintiffs in O.S No.522/2001 on the file of the Munsiff Court, Moovattupuzha are the appellants. Suit was one for perpetual prohibitory injunction to restrain the defendants from obstructing the enjoyment of plaint 'B' schedule way and in using it as a motorable road for access to plaint 'A' schedule property of the plaintiffs. Suit after trial was dismissed. Challenge against the dismissal of the suit by way of an appeal was turned down by the 2nd Additional Sub Judge, Ernakulam. Concurrent decision rendered by the two courts is assailed in this appeal.

(2.) The third plaintiff in the suit had passed away and his legal heirs have joined with the other plaintiffs as additional appellants 3 to 5 in preferring this appeal. The existence of 'B' schedule described in the plaint as a motorable road and the right over that road for access to 'A' schedule claimed by the plaintiffs, as situate in the property of the defendant, was the dispute involved in the suit. Plaintiffs 1 and 2 obtained 'A' schedule property under a partition deed in 1960. 35 cents of that property situate on its western side was initially leased out to the defendant in 1979 to run a Cinema Theatre. Three years later Ext.A2 sale deed was executed in respect of that property in favour of the defendant. Ext.A2 sale deed contained a provision that the vendors have a right of access to their property through the southern side of the property of the defendant conveyed under that deed. A portion of the remaining land, 20 cents, was later settled by plaintiffs 1 and 2 in favour of the third plaintiff. Suit was laid by the plaintiffs stating that a motorable way having a width of 8 feet for access to their property is provided by the terms of Ext.A2 sale deed executed in favour of the defendant. Alleging obstruction to the road described in 'B' schedule, the suit was laid for a perpetual prohibitory injunction. The defendant denied the existence of 'B' schedule road through their property. There never existed such a road, but, only a facility to go over to the remaining portion of 'A' schedule retained by the plaintiffs through the southern side of her property was her case. On the materials placed which included the evidence of PW1 to PW3 and Exts. A1 to A4 on the side of the plaintiffs, DW1 and DW2 for the defendant and Ext.C1 report and C1(a) plan collected through an advocate commissioner, the contention raised by the defendant denying the existence of 'B' schedule was accepted by the trial court, and the suit was dismissed. On reappreciation of the materials, the first appellate court concurred with the finding formed by the trial court, and upheld the dismissal of the suit.

(3.) I heard the counsel for the appellant. Having regard to the submissions made and perusing the judgments rendered by the courts below, I find that the challenges canvassed against the nonsuiting of the plaintiffs relate to the correctness of the finding entered by both the court below that 'B' schedule road claimed by the plaintiffs never existed. Ext.A2 sale deed executed in favour of the defendant by the plaintiffs 1 and 2, admittedly, does not spell out the existence of any road, for access to the remaining property of the vendors, but only states that they have a right to use the southern extremity of the property transferred for such access. Plaintiffs had advanced a case that Ext.A2 deed was prepared by the father-in-law of the defendant, and fraud was practiced in nonspecifying the width of the road while making a provision for access to their property through the transferred land. Both the courts have found the plea so canvassed as bereft of any value. It was the further case of the plaintiffs that the first plaintiff had a motor vehicle even in 1960 and he had been making use of 'B' schedule way for taking his vehicle from his property to the road on the eastern side. The materials tendered in this case disclosed that the road on the eastern side of the defendant's property came into existence long after the conveyance of the property in her favour under Ext.A2 deed. Further more it was also established that no residential building was situate in the property of the plaintiffs even at the time they executed Ext.A2 deed in favour of the defendant.