MOOSA AND OTHERS Vs. SULAIMAN

JUDGEMENT

(1.) Against the judgment and decree, dated 12.8.2005, in A.S.No.108 of 2002 of the Court of the Additional District and Sessions Judge (Ad-hoc) I, Kottayam and the decree in O.S.No.576 of 1997 of the Munsiff's Court, Vaikom, the defendant came up with this appeal.

(2.) The suit was for declaration of right of prescriptive easement of way over item No.3 property having a width of six feet. It was originally decreed by the trial court granting a decree in part declaring right of easement by way of precription over 3.3 feet width of land. It was taken up by both the plaintiff and defendant before the first appellate court by way of appeal and cross objection. The lower court has granted a decree in respect of six feet width of land as claimed by the plaintiff in the plaint by declaring prescriptive right of easement of way over the property. Aggrieved by the said decree and judgment, the defendant came up with this second appeal.

(3.) The bone of the contention raised by the defendant is that in the trial court after the issuance of an exparty commission, a survey commission was deputed, who in turn visited the property and prepared Ext.C1(a) plan showing the width of the way in dispute as one metre. The Commissioner further reported that there were no signs of any alteration or addition made in the property. No objection was preferred either by the plaintiff or by the defendant to the said report. Though the learned counsel appearing for the defendant tried to advance a case based on the earlier commission report, Ext.C2 series, wherein the width of the way is shown as five feet, but no objection was so far raised to Ext.C1(a) plan by the plaintiff. Further, the width measured out by the survey commission would prevail over the report earlier submitted by the commissioner without the assistance of a surveyor. As such, I am of the view that the first appellate court has committed an error regarding the appreciation of Ext.C1 report. The fact that no objection was raised to the said report has not been taken into consideration by the first appellate court and it has resulted in miscarriage of justice to the extent of width of way granted by the appellate court in excess of the decree granted by the trial court and hence the decree granted by the trial court has to be restored by setting aside the decree and judgment of the first appellate court. The width of the way as per Ext.C1(a) plan is only one metre equivalent to 3.3 feet and hence this appeal is liable to be allowed to that extent.