IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 RSA.No. 295 of 2007() --------------------- AS.105/2001 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.98/1999 of MUNSIFF COURT, ETTUMANOOR (OS. 54 /1999) .................... APPELLANTS: APPELLANTS/DEFENDANTS 1 & 2 ------------------------------------------------------ 1. P.K.PRASAD, S/O LATE P.N.KESAVAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 2. P.K.VIJAYAMMA, D/O P.N.KESAVAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. BY ADV. SRI.T.A.SHAJI SMT.T.V.NEEMA RESPONDENTS: RESPONDENTS/PLAINTIFFS 1 TO 5 & DEFENDANT 3 TO 6 ---------------------------------------------------------------------------------- 1. C.N.SARASAMMA, W/O PARAMESWARAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 2. RAJESHKUMAR, S/O LATE PARAMESWARAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 3. RENJITH KUMAR, S/O LATE PARAMESWARAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 4. REJANIMOL.P, D/O LATE PARAMESWARAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 5. RESMIMOL.P, D/O LATE PARAMESWARAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 6. P.K.PADMANABHAN, S/O P.N.KESAVAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. 7. THANKAMMA, D/O P.N.KESAVAN, OOTHAPPARA HOUSE, MANTHURUTHY P.O., NEDUMKUNNAM VILLAGE, CHANGANACHERRY. 8. PUSHPA, D/O LATE P.N.KESAVAN, MUNDAKKAL HOUSE, NARANAMKUZHY P.O., RANNI. 9. MINI, W/O LATE NARAYANAN, PURAKKATTU KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., NATTASSERRY KARA, PERUMPAIKADU VILLAGE. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/01/2008, ALONG WITH RSA NO. 302 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.668/2007 IN R.S.A.NO.295/2007 4.1.2008 DISMISSED Sd/-M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A.NO.295 & 302 OF 2007 =========================== Dated this the 4th day of January 2008 JUDGMENT Plaintiffs in O.S.54/1999 on the file of Munsiff Court, Ettumanoor are the appellants in R.S.A.302/2007. Defendants therein are the respondents. Defendants 1 and 2 in O.S.98/1999 are the plaintiffs in O.S.54 of 1999 and are the appellants in R.S.A.295/2007. Plaintiffs in O.S.98/1999 are respondents 1 to 5 and other respondents the other defendants in the suit. O.S.54/1999 was instituted by appellants seeking a decree for permanent prohibitory injunction contending that under Ext.A1 partition deed item No.1 to 4 of plaint schedule properties being portions of a larger extent of 61 cents was divided and appellants and respondents 4 to 7 were allotted B schedule property therein which is item No.1 of plaint schedule properties in O.S.54/1999 and respondents 1 to 3 therein were allotted A schedule R.S.A.Nos.295 & 302 of 2007 2 property which is item No.2 of plaint schedule properties and legal heirs of Parameswaran were allotted C schedule property therein which is item No.3 of the plaint schedule properties and for ingress and egress to these properties, a way having an extent of 1/2 cent was demarcated in the partition deed which is described as item No.4 of the plaint schedule property. It was contended that in the month of December, 1998 first respondent attempted to widen item No.4 way and when appellants refused to oblige, he filed a complaint before Revenue Divisional Officer, Kottayam and on 25.2.1999 without notice, Village Officer, Perumbaikadu visited the property and told first appellant to widen item No.4 way to a width of 10 feet. Alleging that respondents have collected materials to encroach upon item No.1 of the plaint schedule property, a decree for permanent prohibitory injunction was sought restraining respondents from annexing any portion of item No.1 of plaint schedule property to item No.4 way. Respondents 1 to 3 resisted the suit R.S.A.Nos.295 & 302 of 2007 3 contending that under the partition deed, a way having an extent of one cent was provided and it was a well demarcated by kayyala and it was existing on the date of the partition and respondents never demanded to widen the pathway and appellants obstructed the way which compelled first respondent to move the Revenue Divisional Officer and second respondent was in Delhi and there was no attempt whatsoever to cut open a way and the suit is only to be dismissed. Respondents, in R.S.A.295/2007, instituted O.S.98/1999 seeking a decree for declaration of the way provided under Ext.A1 and mandatory and prohibitory injunction. They contended that under the partition deed, item No.1 pathway was formed as a way leading to the properties divided and allotted to Kesavan, Parameswaran and Neelakandan and the way was having a length of 22 metres and a width of 1.40 metres and though the way is described as 1/2 cent the pathway was lying within the said length and width and respondents are the legal heirs of Easwaran and legal heirs of Kesavan to whom B schedule property R.S.A.Nos.295 & 302 of 2007 4 was allotted in the partition deed are the appellants and in 1998 at the eastern side of the northern boundary, appellants removed the boundary separating the pathway to a length of 15 metres and trespassed upon the pathway to a length of 35 and 30 cms and they have no right to cause any obstruction to the pathway and they constructed the granite wall obstructing the way and they have no right to do so and therefore respondents are entitled to a declaration of right of way over item No.1 of the plaint schedule properties and mandatory injunction for the removal of the granite wall constructed, causing obstruction to the way and also a permanent prohibitory injunction. Appellants in their written statement contended that the width of the pathway stated in the plaint is not correct. It was contended that the width was only one metre and length 20 metres and the pathway was separately demarcated and the existing pathway is having an extent of more than 1/2 cents and respondents are not entitled to claim any portion of the property of appelants and appellants R.S.A.Nos.295 & 302 of 2007 5 did not alter the existing pathway which was provided under Ext.A1 and Revenue Divisional officer has no jurisdiction to grant relief on the way as it is a private pathway and respondents are not entitled to the decree sought for. 2. Learned Munsiff tried both the suits jointly. On the side of respondents/ plaintiffs in O.S.98/1999, Pws. 1 to 7 were examined and Exts.A1 and A2 and C1 to C2(a) were marked. On the side of appellants, Dw 1 was examined. Learned Munsiff on the evidence found that the way provided under Ext.A1 is as described in item No.1 of the plaint schedule properties in O.S.98/1999 and not as described as item No.1 in O.S.54/1999. Learned Munsiff also found that pathway provided was having more width than what now exist and appellants reduced the width of that way by constructing a granite wall on a portion of that way encroaching the way. They have no right to do so. Therefore a decree for declaration of right of way and mandatory injunction to remove the granite stone wall put up by the appellants on the eastern R.S.A.Nos.295 & 302 of 2007 6 part of the northern boundary was granted. O.S.54/1999 was dismissed. Appellants challenged the common judgment before Addl.District Court, Kottayam in A.S.87/2001 and A.S.105/2001. Learned Additional District Judge, as per common judgment, dismissed both the appeals confirming the findings of the learned Munsiff. Challenging the concurrent dismisal of O.S.54/1999, R.S.A.302/2007 was filed. Challenging the decree granted in O.S.98/1999, R.S.A.295/2007 was filed. 3. Learned counsel appearing for appellants was heard. 4. The argument of learned counsel is that courts below did not properly appreciate the evidence and when Ext.A1 shows that the way provided under Ext.A1 is only having an extent of ½ cent, a decree for mandatory injunction should not have been granted. It was also argued that though Pws.4 and 5 were examined by respondents to prove that carts used to be taken to the property of respondents, courts below disbelieved their evidence and there is no evidence to prove that the R.S.A.Nos.295 & 302 of 2007 7 existing way provided under Ext.A1 was reduced by appellants and in such circumstance the decree granted by the courts below is not sustainable. 5. On hearing the learned counsel and on going through the judgments of the courts below, I do not find any substantial question of law involved in the appeals. 6. Under Ext.A1 partition deed, properties were divided and allotted to the children. A schedule property was allotted to Easwaran. B schedule property was allotted to Kesavan. So also the properties covered by the other two schedules were allotted to Parameswaran and Narayanan the other brothers. Appellants are the legal representatives of Kesavan. Respondents are the legal representatives of Easwaran. A schedule property allotted to Easwaran is described as item No.3 in O.S.98/1999 and item No.2 in O.S.54/1999. B schedule property in Ext.A1 is item No.1 of the plaint schedule property in O.S.54/1999. The property allotted to Parameswaran is item No.3 of plaint schedule property in O.S.54/1999. Ext.A1 R.S.A.Nos.295 & 302 of 2007 8 admittedly provides for a common pathway available to all the sharers under Ext.A1. Neither the length nor the width of the pathway is provided in the partition deed. The only description of the pathway given in Ext.A1 is that it is having an extent of ½ cent. But from the fact that it is made available to all the sharers, it is clear that the pathway shall be available to all the properties. When respondents contended that the pathway so provided is having a length of 22 metres and width of 1.40 metres, case of appellants is that it is having only a width of 40 inches and a length of 40 feet. It is the specific case of respondents that appellants constructed a granite wall on a portion of that way reducing its width. What was contended by appellants was that the pathway is having only an extent of one half cent and appellants did not make any alteration or change of the pathway and that pathway exist as it was provided under Ext.A1. Therefore the actual dispute between the parties was with regard to the width of the pathway. R.S.A.Nos.295 & 302 of 2007 9 7. As stated earlier, Ext.A1 does not give us any indication to fix the width of the pathway. On the other hand, both appellants and respondents admitted that the pathway as provided was in existence. When respondents contended that width of the pathway was reduced at the eastern portion of the way by appellants, by constructing a granite wall, it was denied by appellants and they contended that they did not effect any change. Learned Munsiff and learned District Judge on appreciation of evidence found that width of the pathway, as it existed was reduced by appellants by constructing a granite wall to a portion of the way on the east. The argument of learned counsel is that, that finding is not correct. The trial court rendered that finding relying on the report of the Commissioner as well as the evidence of witnesses. The trial court found that evidence of appellant himself as DW1 establish that the disputed granite wall was constructed temporarily and that too without using any cement or mud only some years prior to the institution of the suit. R.S.A.Nos.295 & 302 of 2007 10 That evidence of DW1 itself establish that there was an alteration of the existing pathway, as against the denial and assertion made in their plaint and written statement. It is on appreciating that evidence,in the back ground of the pleading trial court found that granite wall was constructed on the eastern portion encroaching upon the existing pathway. First appellate court reappreciated the evidence and confirmed that finding. The question is whether it is for this court to reappreciate the evidence and substitute that factual finding. Exercising the powers of this court under section 100 of the Code of Civil Procedure, it is not possible to reappreciate the evidence and substitute the finding of fact by the courts below. On going through the judgments, it cannot be said that appreciation of evidence was perverse warranting reappreciation. When it is the admitted case that pathway is provided under Ext.A1 and the pathway so provided is available to the appellants as well as respondents, neither appellants nor respondents are entitled to reduce R.S.A.Nos.295 & 302 of 2007 11 the width of the pathway or cause any obstruction. Evidence establish that as against their case, appellants constructed a granite wall on the eastern portion of that way reducing its width. Courts below rightly granted a decree for mandatory injunction after declaring the right of respondents as provided under Ext.A1. No substantial question of law is involved in both the appeals. Appeals are therefore dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006