IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 RSA.No. 521 of 2006 ---------------------------------- AS.15/1995 of PRL.SUB COURT, KOTTAYAM OS.91/1989 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/APPELLANT/DEFENDANT: BABY MANI, S/O. MANI, MALAYIL HOUSE, SREEKANDAMANGALAM KARA, ATHIRAMPUZHA, KOTTAYAM. BY ADV. SRI.P.B.KRISHNAN ADV.JOSEPH VETTIKAD ADV.SRI.SABU GEORGE RESPONDENT/RESPONDENT/PLAINTIFF: GEORGE SEBASTIAN, KOLLAPPALLILAYA MUNDUVALIL HOUSE, SREEKANDAMANGALAM KARA, ATHIRAMPUZHA, KOTTAYAM. ADV. SRI.MATHEW JOHN K. (COVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.521 of 2006 -------------------------- JUDGMENT The defendant in O.S.No.91/89 on the file of the Munsiff's Court, Ettumanoor is the appellant in this Regular Second Appeal. 2. The respondent/plaintiff instituted the said suit for a decree of mandatory and prohibitory injunction, inter alia, on the allegations that plaint schedule items 1 and 2 belong to him and are in his possession and is being enjoyed as a single holding; that on the western side of the scheduled property there is a thodu within the property; that on the eastern side of the thodu within the scheduled property, the respondent/plaintiff has constructed a granite stone protection wall; that the appellant/defendant is residing on the west of the thodu, he having constructed a house there recently; that the appellant/defendant is attempting to construct a bridge across the thodu and to have a pathway through the scheduled RSA 521/06 2 property without his permission and that after filing of the suit on 13.10.1989, the appellant/ defendant has placed a wooden bridge across the thodu and the said bridge is plaint schedule Item No.3. Hence the suit for mandatory injunction for removal of plaint schedule Item No.3 and for prohibitory injunction against trespass into plaint schedule items 1 and 2. 3. The appellant/defendant resisted the suit filing written statement and additional written statement contending, inter alia, that the suit is not maintainable; that there is no cause of action for the suit; that the court has no jurisdiction to entertain the suit under the Kerala Municipalities Act; that the Athirampuzha Panchayat is a necessary party to the suit; that the thodu on west of the plaint schedule property had a width of ten feet and the said thodu and one metre width of land on both sides of the thodu belong to the Athirampuzha Panchayat as a Panchayat puramboke; that the respondent/plaintiff has no manner of right or RSA 521/06 3 possession over the said portions; that the Panchayat puramboke is being used by him and the public as a public pathway; that the access from his house to the Athirampuzha-Kaipuzha road is through the wooden bridge across the thodu and through the eastern boundary construction of the thodu; that the thodu and thodu puramboke are not in R.S.No.414/2; that as the respondent/plaintiff was permitted to construct a bridge across the thodu on 26.5.1989, he has constructed a bridge and is walking over the bridge and prior thereto as it was summer season and there was no water in the thodu, he was having access by crossing the thodu by getting down into the thodu and that he has no other pathway and the bridge was constructed on the public pathway as permitted by the Panchayat. On the above pleadings the appellant/defendant prayed for a dismissal of the suit. 4. On the above pleasings, the trial court raised necessary issues for trial and considering the evidence adduced in the case, which consisted RSA 521/06 4 of oral evidence of PWs 1 to 5 and DWs 1 and 2 and documentary evidence Exhibits A1 to A5, B1 and B2, C1 and C2 and Exhibits X1 and X2, decreed the suit prohibiting the defendant from trespassing into plaint schedule items 1 and 2 properties and directing him to remove plaint schedule Item No.3 from plaint schedule items 1 and 2 properties within a period of one month and in case of failure, to remove plaint Item No.3 foot bridge in execution and to realise the costs from the / defendant. On appeal by the defendant before the first appellate court as A.S.No.15/95, the appellate court, vide judgment dated 31.7.1998, allowed the appeal in part, though confirming the decree of prohibitory injunction granted by the trial court, by directing the appellant/defendant to remove the bridge constructed across the thodu and dismissed the mandatory injunction prayed for. 5. The aggrieved respondent/plaintiff preferred S.A.No.669/99 before this Court. The said appeal was disposed of by this Court vide judgment dated RSA 521/06 5 26.9.2005 remanding the case to the first appellate court directing to dispose of the appeal afresh observing that the descriptions contained in Exhibits A1 and A2 do not take in the thodu within the 95 cents of property covered by Exhibits A1 and A2, but, all the same, observing further that a measurement of Exhibits A1 and A2 properties, as per the descriptions contained therein, by an Advocate Commissioner, with the help of a Surveyor, would finally resolve the dispute between the parties and that once measurement of Exhibits A1 and A2 properties are completed, the respondent/ plaintiff can protect those properties as per law. 6. When the matter was remitted to the first appellate court, the first appellate court deputed a Commissioner, who submitted Exhibit C3 report and Exhibit C3(a) plan. On the side of the respondent/ plaintiff, additional documents Exhibits A6 to A8 were marked and on the side of the appellant/ defendant Exhibit B3 plan was marked. The appellant/defendant also got examined three more RSA 521/06 6 witnesses on his side other than DWs 1 and 2 already examined. Thus, the evidence in the case, at present, consist of oral evidence of PWs 1 to 5 and DWs 1 to 5 and documentary evidence Exhibits A1 to A8, B1 to B3, C1 to C3(a) and Exhibits X1 and X2. 7. After hearing the counsel for the appellant/ defendant, I admit this appeal on the following substantial questions of law: 1. Whether the judgment of the lower appellate court is sustainable, as it has overturned the findings concluded by the remand order that the thodu is outside the 95 cents covered by Exhibits A1 and A2? 2. Whether the thodu, its bed and bunds on either side of the thodu, at least to the extent necessary to enable the water to flow within the thodu, is an integral part of the thodu itself? 3. Whether the adjoining owner of the property has got any right over the bund so as to annex it to his own land adjoining the thodu? RSA 521/06 7 8. The respondent/plaintiff, who has already entered appearance through counsel, vehemently opposed the grant of any interim order and wanted the matter to be heard and disposed of, as the suit itself is of the year 1989. As both sides were ready, the matter was heard on merits on this day itself. 9. It is vehemently contended before me by the learned counsel for the appellant/defendant that this Court, by judgment in S.A.No.669/99, has held in paragraph 5 of the remand order as follows: “Though, the learned counsel for the appellant, plaintiff, submits that, as per the description contained in plaint schedule as well as the averments made in paragraph 3 of the plaint, the thodu is also taken as part of the plaint item Nos.1 and 2 properties. The descriptions contained in Exhibits A1 and A2 do not take in the thodu within the 95 cents of the property covered RSA 521/06 8 under Exhibits A1 and A2. Thus, according to me, a measurement of Exhibits A1 and A2 properties, as per the description contained therein, by an Advocate Commissioner, with the help of a Surveyor, could finally resolve the dispute between the parties. Once the measurement of Exhibits A1 and A2 properties are completed, the plaintiff can protect those properties as per the law.” It was in view of the disputes between the parties and with a view to settle the dispute for all times to come that this Court remanded the matter to the first appellate court making the following further observation also in paragraph 6 of the remand order, which is as follows: “To enable the plaintiff to measure the properties covered under Exhibits A1 and A2, I set aside the judgments and decrees RSA 521/06 9 passed by both the courts below. The plaintiff shall measure the properties, as ordered herein.” Though, with a view to enable the respondent/ plaintiff to have his properties measured which are covered under Exhibits A1 and A2 title deeds, the judgments and decrees passed by both the courts below were set aside by this Court, as an interim measure, this Court granted a prohibitory injunction restraining the appellant/defendant from trespassing into Exhibits A1 and A2 properties or causing any damage to the cultivations therein or committing any waste till the final disposal of the suit after the measurement of the properties is had as directed in the remand order. It was also specifically stated that it is for the purpose of measuring the properties that the case is remitted back to the first appellate court, directing the parties to appear before the first appellate court on a specified day. The first appellate court was RSA 521/06 10 also directed to dispose of the matter within three months from the date of appearance of the parties. 10. Exhibits A1 and A2 are the title deeds of the respondent/plaintiff in relation to the plaint schedule properties. What is sold to the respondent/plaintiff by the predecessor Ouseph Thoma under Exhibit A1 dated 17.12.1970 is 47½ cents, viz., 19 ares and 2 sq.m., of paddy field, which has, inter alia, road on its south and thodu on its west. In Exhibit A2 sale deed in favour of the respondent/plaintiff dated 23.4.1973, executed by Joseph Mathew and his wife Elsamma, the property that is sold is 48 cents, viz., 19 ares and 43 sq.m. Of paddy field. Even according to the counsel for the respondent/plaintiff, the boundary on east and west stated in Exhibit A2 is to be inter changed, as, by a mistake, the thodu is shown as the eastern boundary, whereas the thodu is the western boundary and there is no thodu on the eastern side of Exhibit A2 property. Thus, what has been purchased by the respondent/plaintiff, both RSA 521/06 11 under Exhibits A1 and A2, is the property bounded on its west by a thodu. The property, when it was so purchased, was not garden land, but was paddy field. When one speaks of any thodu, in common parlance, we cannot conceive of a thodu without its bed and bunds, as in the absence of bunds sufficient to enable flow of water through the thodu, water will certainly flow into the adjacent paddy fields. This means, there cannot be a thodu without its bunds. By the mere fact that the bund of a thodu is re-constructed by granite stones by one of the parties so as to enable the land purchased by him levelled up for being converted it into a rubber estate, the portion of the bund does not become part of the property of the person, who converts it into a granite retaining wall for the purpose of soil from his property sliding into the thodu when his property is reclaimed into a garden land. This exactly is the disputed claim involved in this suit. RSA 521/06 12 11. What the respondent/plaintiff wanted is to have reliefs in his favour in relation to the bund converted by him into a granite retaining wall depriving the use by the appellant/defendant of the said bund so as to have access for him to the southern Athirampuzha-Kaipuzha road, which bounds the southern side of the property of the respondent/plaintiff. It is also in the pleadings and in the evidence that the appellant/defendant is one who has put up his house immediately preceding institution of the suit and he was in need of the use of the bund, which forms the western boundary of the property of the respondent/plaintiff to have access to the southern road. 12. The case of the appellant/defendant is that the suit was filed when he wanted to put up a foot bridge connecting the western bank of the thodu with the eastern bank to enable access to the southern road and that before that as it was summer season, he was getting down into the thodu and climbing to the eastern bank of the thodu to have RSA 521/06 13 access to the southern road, which, consequent on the onset of rainy season, could be had only by putting a foot bridge across the thodu. 13. It is worthy to note in this context that even after the remand for the purpose of measuring out the properties covered under Exhibits A1 and A2, the respondent/plaintiff has not cared to have his vendors examined so as to speak as to whether they were having any claim over the eastern bank of the thodu so as to enable the respondent/plaintiff to claim it as part of the property acquired by him under Exhibits A1 and A2. It is again worthy to note that the Commissioner, who was deputed to measure out the properties acquired by the respondent/plaintiff under Exhibits A1 and A2, has gone to the extent of locating the boundary of the property of the respondent/plaintiff as AQRS line through the middle of the thodu, whereby, in the event of this Court accepting the said plan, half of the width of the thodu also will be within the property of the respondent/plaintiff, which is not RSA 521/06 14 the case of the respondent/plaintiff himself. Even assuming that the Commissioner and the Surveyor, with whose assistance, the Commissioner has prepared Exhibits C3 report and C3(a) plan in accordance with the resurvey, it has to be borne in mind that the resurvey authorities have no business to assign part of the thodu to the owners of the adjoining lands. The width of the thodu, according to the respondent/plaintiff, is six feet as per the allegations in the plaint and according to the contentions in the written statement of the appellant/defendant, its width is about ten feet. The width of the bund of the thodu both on the eastern and western sides, according to the appellant/defendant, is about one metre and as regards the width of the bund, the plaint is silent. The Commissioner's report also is silent as regards the width of the granite retaining wall constructed by the respondent/plaintiff on the western side of his property replacing the bund that was in existence at the time when he purchased RSA 521/06 15 the property under Exhibits A1 and A2. As I have already observed, by the mere fact that the respondent/plaintiff has replaced the eastern bund of the thodu by a granite retaining wall he does not acquire any title over the said eastern bund. No doubt, that benefits him from sliding of sand from his reclaimed land on the eastern side of the said bund into the thodu during rainy season and apart from that benefit, he cannot hope to have title over any portion of the said retaining wall, which was reconstructed by him replacing the bund that was in existence. The respondent/plaintiff shall be at liberty to enclose his properties acquired by him under Exhibits A1 and A2 by constructing a compound wall leaving the retaining wall constructed by him on the west of the said compound wall that he may construct and he has no title either to half of the thodu or to any portion of the eastern bund of the thodu, which was replaced by him by a granite retaining wall. In the circumstances, he is not entitled to any RSA 521/06 16 prohibitory injunction or to the mandatory injunction prayed for. Hence, allowing this Regular Second Appeal, I set aside the decrees passed by the courts below and dismiss the suit. Parties to suffer their own costs. 16th March, 2009 (K.P.Balachandran, Judge) tkv