IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 SA.No. 954 of 2000(E) -------------------------- AS.142/1997 of I ADDL.DISTRICT COURT, THRISSUR OS.729/1992 of ADDL. MUNSIFF COURT,THRISSUR .................... APPELLANT(S):APPELLANTS/DEFENDANTS -------------------------------------------------- 1. JOSE, S/O. CHITTILAPPILLY PORINCHU, AGED 64, NEDUMPUZHA DESOM, KANIMANGALAM VILLAE, THRISSUR DISTRICT. 2. FRANCIS, S/O. CHITTILAPPILLY PORINCHU, AGED 61, NEDUMPUZHA DESOM, KANIMANGALAM VILLAGE, THRISSUR DISTRICT, THRISSUR TALUK. BY ADVS. SRI.VARGHESE PARAMBIL SRI.A.BALAGOPALAN SRI.PRAKASH P.GEORGE SRI.K.C.CHARLES SRI.M.N.MANMADAN RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------- SAROJINI AMMA, D/O. VADAKKUMBHAGATH GOURI AMMA, AGED 60, NEDUMPUZHA DESOM, KANIMANGALAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. ADVS. SRI.G.UNNIIKRISHNON SRI.G.P.SHINOD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.2506/2000 IN S.A. NO.954/2000 DISMISSED 09/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P.BHAVADASAN, J. ---------------------------- S.A.No. 954 of 2000 --------------------------------- Dated this the 9th day of February, 2011 JUDGMENT The defendants, in O.S.No.792/1992 before the Additional Munsiff's Court, Thrissur, who suffered a decree at the hands of the courts below are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff filed a suit for prohibitory and mandatory injunction in respect of the way. The plaintiff claimed right over the way and property by virtue of Ext.A1 dated 26.03.1980. According to him, the appellants put up a fence and concrete pillars on the southern and northern end of the plaint B schedule property. The plaintiff prayed for a mandatory injunction to direct the appellant to remove the fence on the north and south of the plaint B schedule pathway and for prohibitory injunction restraining the appellants from obstructing the respondents from making use of plaint B schedule property and further restraining them from alienating or handing over possession of plaint B schedule property to strangers. 3. The defendant entered appearance and filed a written statement stating that the suit is not maintainable in law. They also pointed out that the plaintiff has no manner of right to use any portion S.A.No. 954 of 2000 2 of their property. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The first defendant remained exparte. An exparte decree was passed infavour of the plaintiff. The defendants carried the matter in appeal as A.S.No.142/1997 before the District Court, Thrissur. The lower appellate court dismissed the appeal and confirmed the decree and judgment of the trial court. 5. Notice has been issued on the following substantial questions of law: A. When the material evidence on record is against the plaintiff's case, whether the court below is justified in decreeing the suit for the reason that the defendants are exparte. B. Whether the judgment rendered by the court below without stating the facts of the case, what are the issues in the case and without properly answering the issues involved in the case is legally sustainable? C. Whether the material evidence on record clearly indicate that the plaint schedule pathway did not exist either on the date of filing of the above suit, or within two years prior to the date of institution o the suit whether the decree passed by the court below holding that the plaintiff has got prescriptive right of easement over the plaint B schedule pathway is legally sustainable ? D. Whether misconstruction of the Ext.A2 sale deed and a complete disregard of the evidentiary value of the commission report. Ext.C1 and C2, which alone could have show the position of the plaint B schedule S.A.No. 954 of 2000 3 property at the time of the institution of the suit, caused substantial injustice to the plaintiff? E. The court below wrongly cast the burden of proof on the defendants to prove that the B schedule property is the property covered by Ext.A2 document. Once the defendants specifically denies plaint allegation, whether the burden of proof is on the plaintiff or the defendants to prove their case? F. When the material evidence on record indicate that the plaintiff approached the court with unclean hands suppressing the material facts and mislead the court below. Whether he is entitled to any equitable relief? 6. The learned counsel for the appellant pointed out that both the courts below have not understood the nature of the case set up by the plaintiff. The decree is passed by the courts below holding that the plaintiff has got prescriptive right of easement over the plaint B schedule pathway. The learned counsel drew the attention of this court to the commissioner's report and pointed out that going by the report of the commissioner there is a way to the plaint A schedule property. The plaint A schedule has a motorable way and the respondent had claimed right of easement by prescription over the said way as against his assignor under Ext.A1. The learned counsel also pointed out that undue importance is given to the eastern boundary of document of title. 7. Learned counsel for the respondent pointed out that both the S.A.No. 954 of 2000 4 courts below have considered the matter on merits and no grounds are made out to interfere with the findings of the courts below. The first defendant remained exparte and an exparte decree was passed infavour of the plaintiff. From the plaint, it is not very clear as to where exactly the B schedule pathway is located. They do not admit the title of the defendants regarding the plaint B schedule pathway. Commissioner's report also shows that in the alleged plaint B schedule property, there are very old trees and age old bamboo clusters. 8. There is dispute regarding the age of the fence at the southern side of the defendants property. In the light of these factors, an opportunity ought to have been granted to the defendant to establish his case. There is nothing to show that there was any latches or negligence on the part of the defendant for not prosecuting the suit properly. They had filed a written statement specifically denying the allegations in the plaint. In the interest of justice, the defendant ought to have been given a chance to establish his case by adducing evidence. In the result, This appeal is allowed, the judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. Parties shall appear before the trial court S.A.No. 954 of 2000 5 on 29.03.2011. Parties will be at liberty to adduce further evidence. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln