IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 SA.No. 255 of 1998() -------------------- AS.100/1992 of ADDL. DISTRICT COURT, N.PARAVUR OS.214/1989 of MUNSIFF COURT, PARAVUR .................... APPELLANT(S) – RESPONDENTS 3, 4, 5, 6, 8, 9, 10, 11, 12 & 13 AND DEFENDANTS :- -------------------------------------------------------------------------------------------- 1. RAGHAVAN DASAN, PARINGODAN, MUNAMBAM MURI, KUZHIPPILLY VILLAGE. 2. RAGHAVAN SASI, AGED 25, PARINGODAN, MUNAMBAM MURI, KUZHIPPILLY VILLAGE. 3. MADHAVAN VISWAMBARAN, PARINGODAN, MUNAMBAM MURI, KUZHIPPILLY VILLAGE. 4. MADHAVAN REGHU, PARINGODAN, MUNAMBAM MURI, KUZHIPPILLY VILLAGE. 5. UMAYAMMA NARAYANAN, D/O.RAGHAVAN, RESIDING AT CHAMBANGATTU, CHERAI MURI, PALLIPPURAM VILLAGE. 6. SOBHA NARAYANAN, D/O.RAGHAVAN, RAMATH VEEDU, WEST PARINJANAM, THRISSUR. 7. BOBY, PARINGODAN, MUNAMBAM MURI, KUZHUPPILLY VILLAGE. 8. SUDHY, S/O.RAGHAVAN, MUNAMBAM MURI, KUZHUPPILLY VILLAGE. 9. VASANTHY UNNIKRISHNAN, MUNAMBAM MURI, KUZHUPPILLY VILLAGE. SA.No. 255 of 1998 10. YADHULA UNNIKRISHNAN, D/O.VASANTHY UNNIKRISHNAN, (MINOR), REPRESENTED BY MOTHER VASANTHY, MUNAMBAM MURI, KUZHUPPILLY VILLAGE. BY ADVS. SRI.E.SUBRAMANI SMT.MARY BENJEMIN RESPONDENT(S)-APPELLANT/PLAINTIFF :- ------------------------------------------------------------ CHANDRIKA, W/O.ACHUTHAN, THAYATTENPARAMBIL, AGED 63, MUNAMBAM MURI, KUZHIPPILLY VILLAGE. ADV. SRI.T.A.SHAJI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt SA.No. 255 of 1998 ORDER ON CMP No.734 of 1998 IN S.A.No.255 OF 1998 Dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE. 18.10.2010. //True Copy// P.A. to Judge S.S.SATHEESACHANDRAN, J. ---------------------------------------- S.A. No.255 of 1998 --------------------------- Dated this the 18th day of October 2010 J U D G M E N T The defendants in a suit for injunction are the appellants. The trial court after considering the materials tendered by both sides nonsuited the plaintiff/respondent. In the appeal preferred by the plaintiff, the lower appellate court reversing the dismissal of the suit granted a decree of injunction against the defendants/appellants as applied for. 2. The dispute between the parties was over the enjoyment of a pathway claimed by the defendants as running through the plaint property. In the plaint, the plaintiff alleged that the defendants have a right of way through the western side of their property which, according to her, is having a width of 4 feet. Just before the institution of the suit to claim a right of way through the S.A. No.255 of 1998 -: 2 :- plaintiff's property, they closed the opening of the fence on the western side of their property which provided the access to the pathway on the western side, is the further case of the plaintiff. Previously on the permission given by the plaintiff, the defendants used to pass through her property and that of one Mr.Shanmugham, situate to the east of her property, to reach Vypeen-Munambam road. Now, the permission had been withdrawn, but, still, the defendants want to make out a way through her property, was the case of the plaintiff to claim a decree of injunction against the defendants from interfering with her possession and also from causing any obstruction to her putting up a fence on the western side of her property. Resisting the suit claims the defendants filed a joint written statement, in which they contended that they have been enjoying a right of way through the property of the plaintiff and also that of the Shanmugham situated to the east of the plaintiff's property, to have access to Vypeen Munambam road. They S.A. No.255 of 1998 -: 3 :- contended that over such way they have acquired a right of prescriptive easement and also an easement of necessity. In respect of the way which is alleged to be under their use situated to the west of their property, these defendants contended that such way had been carved out on the basis of a compromise decree passed in the suit between two neighbouring owners, and they have no right or enjoyment over that way. 3. On the materials placed by both sides, PWs.1 and 2, Exts.A1 and A2 for the plaintiff and DWs.1 to 3 and Exts.B1 and B2 for the defendants, and C1 and C2 the Commission report and plan prepared by the advocate commissioner deputed by the court, the trial court found the case canvassed by the defendants as to having enjoyment of a right of way through the plaintiff's property more probable, and in that view of the matter it was found the plaintiff is not entitled to discretionary relief of the decree of injunction applied for. The Commissioner S.A. No.255 of 1998 -: 4 :- deputed by the court has found a beaten track having a width of 11/2 feet running through the plaint property from the properties of the defendants on its western side, and continuation of that track through the property of Shanmugham situated on the eastern side of the plaint property, as reported in his C1 report and identified in C2 plan, appealed to the trial court along with other materials tendered in this case to accept the claim made by the defendants that they are continuously in enjoyment of a pathway as of right through the plaint property, with the result of leading to the conclusion that the plaintiff is not entitled to the reliefs canvassed in the suit. Plaintiff challenged the decision rendered in her suit preferring an appeal. The lower appellate court after appreciating the materials tendered and differed from the findings entered by the trial court observing that the right of prescriptive easement and also easement by necessity claimed by defendants cannot go together and that passing through the S.A. No.255 of 1998 -: 5 :- property of another by itself could not confer any right on the user, and it found merit in the suit canvassed by the plaintiff, who, according to that court, had approached the court with clean hands even stating in her plaint the existence of pathway through her property but enjoyed by the defendants on the permission given by her. The lower appellate court reversed the dismissal of the suit and granted a decree in favour of the plaintiff restraining the defendants from interfering with her possession and enjoyment and also from causing any obstruction in putting up a fence on the western side of the plaint property. 4. I heard the counsel on both sides. The significant question that emerges for consideration in the second appeal is whether the lower appellate court was justified in reversing the dismissal of the suit in the given facts and also materials tendered in the case on the reasonings spelt out in its judgment. Needless to point out that scrutiny and appreciation of the materials to examine the correctness of S.A. No.255 of 1998 -: 6 :- the finding over disputed facts by the lower appellate court, which is the last authority there of, in second appeal by this Court will not be justified unless it is shown that the finding was not based on materials or it is perverse, or inadmissible evidence had been taken into consideration to form the conclusion rendered in the case. Perusing the judgments of both courts and also the materials tendered in the case, I find that interference with the judgment of the trial court that the plaintiff is not entitled to the decree of injunction, on the reasonings given by the lower appellate court cannot be justified. The lower appellate court has taken a view that in the suit for injunction which is claimed on the basis of title the plaintiff need show only her title. Injunction whether it is claimed on the basis of title or otherwise, primarily, demands proof of exclusive possession to sustain such discretionary relief. The crucial question involved in the case in the light of contentions raised by the defendants to resist the suit claim was whether the defendants are in S.A. No.255 of 1998 -: 7 :- enjoyment of a pathway through the property of the plaintiff. The assertion of the plaintiff that previously the defendants have been using her property on permission, for access to the eastern side, after passing through the property of another neighbour as well, namely, Shanmugham, could have been given some significance if there was no material indicating that tell tale marks as to continuous use of a pathway through her property commissioner has noted a beaten track passing through the property of plaintiff commencing the western side of the property of defendants. The explanation offered by the plaintiff in respect of such beaten track that the people in the locality passed through her property to collect water from a pool situate on the western side, which was found appealing to the lower appellate court, to say the least, cuts at the root of her claim as to having exclusive possession over the plaint property. If people in the locality enjoyed such a pathway, an identifiable beaten track through the S.A. No.255 of 1998 -: 8 :- plaint property, it need not be stated that circumstance weakens the case of the plaintiff. However, it is to be noticed that the Commissioner has reported, and specifically identified in C2 plan, that a beaten track starting from the eastern boundary of the properties of the defendants cut across the plaintiff's property and pass through the property of Shanmugham on its eastern side, and, then, end in the public road, Vypeen-Munambam road, on the south. The existence of such a beaten track as indicated above is a circumstance canvassed by the defendants as to their enjoyment of a pathway through the property of the plaintiff to have access to the Vypeen- Munambam road. Whether or not the defendants are in enjoyment of another way through the western side of their property as contended by the plaintiff, has got only an innocus value in judging the merit of the claim canvassed by the plaintiff in the decree of injunction. Suit is one for injunction and as already indicated the burden is on the S.A. No.255 of 1998 -: 9 :- plaintiff to prove exclusive possession over the same to sustain that relief. The view taken by the lower appellate court over the conflicting rights of easement, one prescriptive and other by necessity, by the defendants to resist the suit, claim, to uphold the claim of the plaintiff is unsound. The defendants have not raised any counter claim nor sought a declaration of their right of easement and, further, contradictory and conflicting rights of easement were made by them, appealed to the lower appellate court to grant a decree of injunction to the plaintiff. To resist a decree of injunction the defendants need not set up a counter claim nor establish their right of easement. Even an inchoate right which has not matured and crystalized into a full right, can be set up as a defence to resist the suit claim for injunction. This Court in Krishna Pillai v. Kunju Pillai [1990(1) KLT 136] has pointed out that to resist the claim of a declaration or enforcible claim, there is no need to raise a counter claim S.A. No.255 of 1998 -: 10 :- by setting up a defence and substantiating such defence. Even an inchoate right which is at the stage of user alone without having matured into a full right can also be set up as a defence and in a deserving case invasion against that right within the limits of law will be protected by the court. Such a right can be put forward as a sword as well as a shield within the permissible limits such be the position of law inconsistent claims of easement had been by the defendants, to resist the suit claim of injunction by the plaintiff, by itself, is not a ground to discard their defence, especially where the materials tendered in the case demonstrated that they are in enjoyment of a pathway through the plaint property. May be the right enjoyed by them has not matured in to right of easement by prescription or not available as an easement by necessity. But where it is shown that they are using the pathway, a beaten track identified by the Commissioner, through the property of the plaintiff, for access to a public road, the S.A. No.255 of 1998 -: 11 :- decree of injunction claimed by the plaintiff to prevent them from using such a way as rightly held by the trial court, was not allowable, and the dismissal of the suit by that court was proper and correct. The lower appellate court has reversed that dismissal on erroneous and unsustainable grounds overlooking the proved facts and circumstances of the case and it is liable to be set aside. In the result, the appeal is allowed. Reversing the judgment of the lower appellate court, the decree of dismissal of the suit is restored. Both parties are directed to suffer their costs. S.S.SATHEESACHANDRAN, JUDGE. Jvt