IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 SA.No. 320 of 1997(D) --------------------- AS.36/1993 of ADDL.D.C.,THODUPUZHA OS.31/1990 of MUNSIFF'S COURT, THODUPUZHA .................... APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------------------ N.V. ANTONY, RESIDIG AT NANTHIKATTUKANDATHIL HOUSE, ANJIRI KARA, ALAKODE VILLAGE, THODUPUZHA TALUK. BY ADV. SRI. P.R. VENKATESH. RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. K.T. SCARIA, KONGALAKANTHU HOUSE, ANJIRI KARA, ALAKODE VILLAGE, THODUPUZHA TALUK. 2. ANNA SCARIA, KONGOLAKNANATTU HOUSE, ANJIRI KAR, ALAKODE VILLAGE, THODUPUZHA TALUK. ADV. SRI.K.C.ULAHANNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON 14/10/2009 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 320 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2009. JUDGMENT The plaintiff, who had his suit dismissed by the trial court and who suffered the same fate at the hands of the first appellate court is the appellant before this court. 2. The suit was one for injunction. Plaint A schedule property belongs to the plaintiff. The property of the second defendant is situated on the western side of the plaintiff's property. By the side of that property, there is Manjapra – Thalanadu Panchayat road. The first defendant is the husband of the second defendant. According to the plaintiff, in order to reach the Panchayat road, there is no other way except to pass through the defendant's property. Till 1994 there was an electric line up to plaint A schedule property. There are about 15 families residing on the other side of the plaintiff's property. At the behest of Sri. P.J.Joseph, the then Panchayat President, measures were taken to extend the S.A. 320/1997. 2 electric line for the benefit of those families also. The plaintiff would say that they approached him seeking his permission to draw the electric line through his property. The plaintiff agreed on condition that he should get 12 feet width way through the property of the defendants in order to reach plaint A schedule property from the Panchayat road. The plaintiff would claim that, that was agreed to by the defendants and accordingly the electric line was drawn and he was entitled to use the way. The way so provided to the plaintiff is shown as plaint B schedule. According to the plaintiff, after the electric line was drawn, the defendants showed diffidence to convey property to him. He further stated that the defendants have now disputed the use of the way provided by them through their property. Since they have threatened to close down the pathway, the suit was laid. 3. The suit was resisted by the defendants. They denied that 1 acre 92 cents of property situate on the western side of the property of Abraham belongs jointly to them, and contended S.A. 320/1997. 3 that the property exclusively belongs to the second defendant. Plaint A schedule property had another pathway for access to the outside world. The allegation regarding the intervention of the Panchayat President and the defendants agreeing to permit the plaintiff to construct a road are baseless. There was never a pathway as claimed by the plaintiff through the defendants' property. They however, conceded that there was a four feet width pathway passing through their property, which provided access to the plaintiff. They wanted to put up a kayyala to to protect the property and that would not affect the pathway then in existence. The defendants pointed out that the attempt of the plaintiff is to get the pathway widened under the guise of a compromise. According to them, the plaintiff was not entitled to any relief. 4. The trial court raised necessary issues for consideration. Evidence consists of the testimony of P.Ws. 1 to 4 and Exts.A1 and A2 from the side of the plaintiff and defendants had D.W.1 examined and Ext.B1 marked on the side of the S.A. 320/1997. 4 defendants. Exts.C1 and C2 are the commission reports. On an appreciation of the evidence before it, the court below found that the property through which plaint B schedule pathway passes, belongs to the second defendant and that the first defendant had no manner of right over the same. Even according to the plaintiff, it was the first defendant who had agreed to provide a pathway through the property owned by the defendants. The trial court found that there was no such concession from the side of the second defendant, who owned the property nor she was prepared to do so. Finding that the first defendant had no right to enter into an agreement on behalf of the second defendant, relief was declined and the suit was dismissed. On appeal, the appellate court confirmed the judgment and decree of the trial court. At the time of admission, notice was issued on the following substantial questions of law: “(a) When the evidence on record prove the existence of a pathway of 12' and here is no case for the defendants that plaintiff surrendered a pre-existing S.A. 320/1997. 5 pathway by force or otherwise, is not the courts below bound to draw the inference that the road which had been in existence is of a width of 12'. (b) As against a total denial of any decision to widen the road by the defendants, when the first defendant admitted a decision to widen the road, is it not only legitimate to infer that the widening is to the present state of affairs from the admitted pre-existing pathway. (c) In appreciation of the evidence by the courts below are they not bound to consider the evidence as a whole and analyse the documents and the pleadings.” 5. It must be noticed that the defendants do concede that there is a pathway having a width of four feet running through their property. It cannot be disputed that the property, through which the plaintiff claims a 12 feet width pathway, belongs exclusively with the second defendant. There is no case for him that the second defendant was a party to the so called agreement entered for the purpose of drawing electric line. There is also nothing to show that the first defendant was authorised to enter into any agreement or any arrangement on behalf of the second S.A. 320/1997. 6 defendant. Even though the plaintiff pointed out that the defendants had agreed to enter into an agreement, no such agreement had been executed. There is nothing to indicate that the second defendant was aware of the so called agreement to provide 12 feet width pathway through his property. It was on the basis of the fact that the first defendant had no right to enter into an agreement on behalf of the second defendant, even assuming that the agreement alleged by the plaintiff is true, the courts below have declined to grant relief to the plaintiff. 6. The fact is that the second defendant is the owner of the property through which the plaintiff claims 12 feet pathway. The plaintiff has not adduced any evidence to show that the second defendant had ever agreed to provide B schedule pathway through his property. It is not possible to understand how the plaintiff can claim any manner of right under the second defendant for having a pathway through his property. None of the substantial questions of law, on which notice has been issued, arise for consideration in S.A. 320/1997. 7 this appeal. Both the courts below, on an appreciation of the evidence in the case, have found that the plaintiff is not entitled to any relief. No interference is called for with the judgment and decree of the courts below. This appeal is without merit and it is only to be dismissed. I do so with costs. P. BHAVADASAN, JUDGE sb. S.A. 320/1997. 8 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 320 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 14.10.2009