M. Sasidharan Nambiar, J.@mdashPlaintiff in O.S. 353/1997 on the file of Munsiff Court, Hosdrug is the appellant. Defendant is the respondent.
Appellant instituted the suit seeking a decree for permanent prohibitory injunction contending that he has prescribed a right of way over the plaint
schedule property, which is being used as a way as of right to reach plaint A schedule property which admittedly belongs to him. It originally
belonged to Kunhambu Nair. On his death as per a partition it was allotted to the share Narayani Amma and others, who sold the same, as per
Ext.A1 sale deed dated 2.7.1976 in favour of Raghava Poduval who was examined as PW3. PW3 sold it to Janardhanan under Ext.A2 sale deed
from whom appellant purchased it under Ext.A3 sale deed dated 3.5.1997. Appellant contended that plaint B schedule property is the way which
was being used by his predecessors as of right and as an easement right, openly, peacefully and uninterruptedly for more than 35 years and
therefore he has right of easement by prescription. A decree for injunction was sought contending that respondent is obstructing the way and he
has no right to obstruct it. Respondent in his written statement disputed the claim and contended that plaint B schedule property is not a road and
plaint A schedule property was originally a paddy field and predecessor of the appellant has been using another way and he has no right of way
over the plaint B schedule property. Originally learned Munsiff granted a decree in 1997 favour of the appellant. In the first appeal (A.S. 31/1997)
filed by the respondent, the decree was set aside and the suit was remanded. It was challenged before this Court in C.M.A. 262/01. This Court as
per judgment dated 12-6-2002 found that the evidence on record is insufficient to establish the right of easement by prescription claimed by
appellant and did not interfere with the order of remand. Learned Munsiff thereafter as per judgment dated 22.1.2003 dismissed the suit holding
that appellant did not establish the right of easement by prescription appellant is not entitled to the decree for injunction. Appellant challenged the
decree and judgment before Sub Court, Hosdrug in A.S. 9/2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of
learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
2. Learned Counsel appearing for the appellant vehemently argued that courts below did not appreciate the evidence in the proper perspective and
evidence establish that PW3 constructed a house in the plaint A schedule property in 1976 and plaint B schedule way was being used by him as a
road. It was argued that evidence of PW3 prove that he filled up plaint B schedule property with 70 loads of earth and since then he has been
using the way as a road to the plaint A schedule property openly, peacefully and without interruption and courts below on the evidence should
have granted the decree for injunction.
3. On hearing learned Counsel and going through the judgments of the courts below, I do not find any substantial question of law involved in the
appeal.
4. Though suit is only one for injunction, the decree was sought setting up a right of way by easement of prescription over plaint B schedule
property. Appellant cannot succeed in the suit without establishing the right of way. He has to establish the ingredients necessary to establish a right
of easement by prescription. The case of appellant was sought to be proved by the evidence of PW3, the assignor of the appellant. Learned
Munsiff and learned Sub Judge on appreciation of evidence found that evidence of PW3 that he filled up the plaint B schedule property in 1976
and has been using it as a way cannot be believed, and there is no other evidence to support the case of the appellant that he has been using the
way as a right of easement for the requisite period. Courts below found that the southern road to which the disputed way was connected, was
formed only two years prior to the date of the suit and therefore case of appellant and PW3 that plaint B schedule property was filled up to form
the road in 1976 cannot be believed. Moreover after remand no other witness was examined to prove the alleged right even though the earlier
evidence was found insufficient. Though it was argued that evidence was not properly appreciated and so the finding is unsustainable, the powers
of this Court u/s 100 of C.P.C. cannot be widened. This Court cannot on reappreciation of evidence substitute the findings of this Court to that of
the courts below. Factual findings of the courts below cannot be interfered. As no substantial question of law is involved in the appeal, appeal is
dismissed in limine.