THOMAS ALIAS THOMMACHEN Vs. DEVASIA ALIAS BABY

JUDGEMENT

(1.) DEFENDANT in O.S.230 of 2007 on the file of Munsiff Court, Thodupuzha is challenging the concurrent decree granted in favour of the respondent restraining the appellant from trespassing into the plaint schedule property. Plaint schedule property admittedly belongs to the respondent. Appellant is contending that he has a right of way through the plaint schedule property to reach the eastern road. According to the appellant, he and his predecessor have been using that way for more than 20 years as of right and as an easement, openly and peaceably without any interruption and therefore he has prescribed a right of way. Respondent contended that appellant has not been using a way through the plaint schedule property and therefore he is not entitled to have a right of way through the plaint schedule property.

(2.) LEARNED Munsiff on the evidence, found that appellant did not establish that he had a right of way by easement of prescription as claimed, through the plaint schedule property and therefore granted a decree restraining him from trespassing into the plaint schedule property. Appellant challenged the judgment before District Court, Thodupuzha in A.S.9 of 2009. LEARNED District Judge, on re-appreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

(3.) ON hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Though the suit is one for injunction instituted by the respondent restraining the appellant from trespassing into the plaint schedule property, the real dispute between the parties is the claim of the appellant for a right of way, through the plaint schedule property. The question is whether appellant has established right of way by easement of prescription. As rightly found by the courts below to claim a right of way by easement of prescription, appellant has to establish that he or his predecessor have been using the disputed way openly, peaceably and continuously without interruption for more than 20 years and that too, as of right and as an easement. Trial court, on proper appreciation of the evidence entered a factual finding that appellant did not establish that he or his predecessor have been using the way through the plaint schedule property for more than 20 years continuously and that too as of right and as an easement. First appellate court on re-appreciation of the evidence confirmed that finding. Though learned counsel vehemently argued that the finding is not factually correct and made available copies of the depositions of the witnesses, on going through the evidence, I cannot agree with the learned counsel that the factual finding of the courts below is not in accordance with the evidence. Moreover, even according to the appellant, the way claimed by him starts from the eastern road, then passes through the plaint schedule property belonging to the respondent and thereafter through the property of Mathai and then only reaches his property. Appellant has no case that Mathai was on inimical terms with him. ON the other hand, it is his case that he had obtained the property, on lease from Mathai, which lies to the east of his property earlier. Though in chief examination, he deposed that the lease was obtained in 1992, in cross examination he deposed that he obtained the property in 1980. It is his evidence that the eastern boundary of the property of Mathai, which was taken on lease, is the eastern road. The evidence of DW1, the appellant is that before the construction of the wall on the western side of the road, direct entry from the western property to the eastern road was possible. If that be the case, evidence of DW1 establishes that he has been in possession of the property belonging to Mathai, which lies immediately to the west of the eastern road, on lease and there was direct entry from the eastern road is to that property. If that be so, he had direct entry to his property from the eastern road, through the leasehold property obtained from Mathai. In the light of the evidence on record, I find no substantial question of law involved in the appeal. Appeal is dismissed.