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2025 Supreme(Online)(Ker) 26988
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
DHARMAPALAN – Appellant
Versus
MANESHA – Respondent
RSA NO. 298 OF 2025
For the Appellants/Petitioners: SMT.DHANUJA M.S
For the Respondents: SMT.N.V.SANDHYA
The failure of a party to provide evidence or challenge findings of lower courts can be fatal to an appeal for injunctions based on prescriptive rights.
Headnote:(A) Code of Civil Procedure - Section 100 - Permanent prohibitory injunction - Plaintiff claimed a prescriptive right of easement over property, proven through continuous and uninterrupted usage for over 100 years - Defendant's objection not substantiated by evidence or counterarguments - Advocate Commissioner’s report favored plaintiff but was challenged by defendant - Courts found no error in judgment; thus appealed decision upheld. (Paras 2, 4, 5)
(B) Evidence - Failure of defendant to present evidence or objections undermined his case; the inability to challenge findings of the Advocate Commissioner led to dismissal of appeal. (Paras 3, 5)
Facts of the case:
The respondent filed a suit for a right of easement, claiming over 100 years of uninterrupted use of the pathway. The defendant argued against this, but failed to provide any evidence or counterarguments, relying solely on the Advocate Commissioner’s report.
Findings of Court:
The courts found in favor of the plaintiff based on continuous usage over a century and lack of evidence from the defendant.
Issues: The court addressed whether the defendant’s lack of evidence constituted a valid challenge to the findings of the Advocate Commissioner.
Ratio Decidendi: The court held that without substantial evidence or objections, the appeal could not succeed, reaffirming the principle that evidence cannot be reappreciated under Section 100 without valid grounds.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. plaintiff claimed prescriptive easement over property. (Para 2) |
| 2. courts upholding findings of the advocate commissioner. (Para 3) |
| 3. defendant's failure to present evidence or objections. (Para 4) |
| 4. appeal dismissed due to lack of challenging evidence. (Para 5) |
JUDGMENT
This appeal arises out the concurrent findings of the Munsiff Court, Chavakkad in O.S.No.3386 of 2016 and also the Sub Court, Chavakkad in A.S.No.24 of 2023.
2. The brief facts necessary for the disposal of the appeal are as follows:-
The respondent / plaintiff filed a suit for permanent prohibitory injunction claiming a prescriptive right of easement over the plaint B schedule property. According to the plaintiff, he and his predecessors were using the said pathway for more than 100 years continuously, openly and uninterruptedly as of right as an easement. The defendant contested the case and contended that the plaintiff had no right of easement over the plaint B Schedule property. The plaint schedule properties were included in the partition deed No. 1519/1943 of Thriprayar S.R.O. Later, the plaintiff by virtue of release deed No.1692/2015 acquired the plaint A schedule property. The plaintiff started the ration shop in the plaint A schedule property only 6 years ago and the defendant had never approached the plaintiff for the purchase of plaint A schedule property. On behalf of the plaintiff, PW1 and PW2 were examined and Exts.A1 and A2 were marked. On behalf of the defendant, Exts.B1 to B5 were marked. No oral evidence was adduced by the defendant. An Advocate Commissioner was appointed by the Trial Court, who inspected the property and filed C1 report and C1(a) plan, wherein it was reported that there is no alternative pathway for the ingress and egress to plaint A schedule property. Therefore, the Trial Court, based on the oral testimony of PW1, Exts.C1 and C1(a), found that the plaintiff is entitled for an order of injunction, accordingly decreed the suit. Aggrieved by the judgment and decree, the defendant filed an appeal before the Sub Court, Chavakkad as A.S.No.24/2023, which was also dismissed by the said court as per judgment dated 13.11.2024. Against the same, the present appeal is filed.
3. Heard Smt.Dhanuja M.S, the learned counsel appearing for the appellant.
4. The learned counsel for the appellant submitted that the findings of the courts below based solely on the report of the Advocate Commissioner cannot be sustained. According to the learned counsel, plaintiff did not adduce any evidence regarding the right of easement by prescription. The Advocate Commissioner also failed to notice the facts correctly.
5. On a consideration of the submissions raised by the learned counsel for the appellant, this court finds that there is no substantial question of law arising for consideration in the present appeal. The failure on the part of the defendant to mount the box is fatal to the case projected before this Court. It has come out that the defendant did not file any objection or not sought the remission of the report of the Advocate Commissioner. No plausible reasons are forthcoming from the side of the appellant as regards his failure to file an objection to the report of the Advocate Commissioner. The courts below concurrently found in favour of the plaintiff on the basis of report of the Advocate Commissioner. In the absence of any challenge to the findings of the Advocate Commissioner, this Court finds, that in exercise of the powers under Section 100 of the Code of Civil Procedure , the evidence cannot be re-
appreciated to come to a different conclusion.
In the result, this appeal fails and the same is accordingly dismissed. No costs.
