IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 SA.No. 630 of 1998(Y) ---------------------------- AS.477/1994 of SUB COURT,NEYYATTINKARA OS.1518/1989 of II ADDL.M.C.,NEYYATTINKARA .................... PETITIONER/ PETITIONER : - ----------------------------------------- 1. P. SARASAMMA, W/O LATE SRI. KARUNAKARAN NAIR, HINDU, AGED 57, GOVINDA MANDIRAM, NEAR T.D. JUNCTION, NEYYATTINKARA. BY ADVS. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE RESPONDENTS / RESPONDENTS : - ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SPECIAL SECRETARY TO GOVERNMENT (REVENUE), TRIVANDRUM. 2. THE DIRECTOR, SURVEY AND LAND RECORDS, VAZHUTHACAUD, TRIVANDRUM. 3. THE ASSISTANT DIRECTOR, RE-SURVEY NEYYATTINKARA. 4. TALUK TAHSILDAR, NEYYATTINKARA. 5. ABOOBAKER KUNJU, MEDAYIL VEEDU, T.B. JUNCTION, NEYYATTINKARA. R1 TO R4 BY GOVT. PLEADER SRI. SHIBU JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NONE APPEARS. DISMISSED FOR DEFAULT. 10.11.2011 Sd/- B.P.RAY (JUDGE) TRUE COPY P.A. TO JUDGE DMR/- THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.630 of 1998G --------------------------------------- Dated this 30th day of March, 2010 JUDGMENT The following substantial questions of law are framed for a decision in this second appeal: (i) Is not the plaintiff entitled to relinquish the prayer for declaration of easement right and limit the suit as one for injunction alone? (ii)Is the appellate court justified in dismissing the amendment application on the ground that prayer for declaration of easement right is withdrawn? (iii)Is not the appellate court bound to consider the petition for accepting fresh documentary evidence along with the appeal? (iv)Is not the plaintiff entitled to a decree of injunction restraining the defendants from obstructing the public way appropriating a portion of government land used as a pathway by the plaintiff for getting access to his property? 2. This appeal is at the instance of plaintiff who lost the suit in the courts below. It is not disputed that plaint A schedule originally belonged to respondent No.1 as per Ext.A2, sale deed No.6872 of 1961 and that the said property along with the building S.A.No.630 of 1998G : 2 : thereon was assigned to the appellant as per Ext.A1, assignment deed No.2406 of 1976 together with right of easement and other rights which respondent No.1 had over the said property. According to the appellant, she has been gaining access to the plaint A schedule from the TB road through a pathway having width of 18 links. It is also her case that towards southern portion of the said pathway is the property of respondents. The disputed pathway to the extent it passed through the side of property of respondents is described in plaint B schedule. She claimed that it is a public way and that herself and predecessors were using the said pathway for the last more than 75 years. She also claimed a right of easement over the said way and alleging that respondents attempted to obstruct her user of the said way, laid the suit claiming decree for prohibitory injunction to restrain respondents from obstructing user of plaint B schedule way and for a declaration of right of easement. Respondent No.2 filed written statement denying averments in the plaint and disputing existence of plaint B schedule as claimed in the plaint. Respondent No.2 claimed that rest of the property belonging to the appellant and adjoining plaint A schedule abutted the TB road and her access is through the said portion of her property. It is denied that there is any public way as claimed by the appellant. Appellant got the plaint amended incorporating paragraph 8(a) S.A.No.630 of 1998G : 3 : stating that it is contended (by the respondents) that there is no such pathway and as if pathway is part of property of respondents and hence to avoid contentions, plaint B schedule including property of respondents is shown in the plaint as C schedule. The C schedule description is to the effect that it is 5 cents including plaint B schedule and the property belonging to the respondents. In the trial court, appellant gave evidence as PW1 and examined as PWs.2 to 6. She also proved Exts.A1 to A6, C1, C1(a), X1 and X2. Respondents did not adduce any oral evidence but produced Ext.B1, document of title in respect of the property belonging to them. Trial court held that going by the averments in the plaint and evidence of appellant as PW1 what is discernible from the plaint is a plea of easement by way of necessity which cannot stand since appellant can gain access to the plaint A schedule property from TB road through the rest of her property. Learned Munsiff also observed that even if it is assumed that a right of easement by way of prescription is also claimed, there is no sufficient plea or evidence in that regard. Learned Munsiff proceeded to observe that in paragraph 11 of the plaint appellant has pleaded that disputed B schedule is a public pathway in which case, claim of easement either by way of necessity or prescription could not stand. The wuit was dismissed. Appellant took up the matter in appeal. While the S.A.No.630 of 1998G : 4 : appeal was pending, it is submitted by learned counsel for respondents that appellant filed application on 08-11-1991 to amend the plaint to incorporate a plea of easement by prescription over the disputed pathway. That was followed by I.A.No.228 of 1997 filed on 28-02-1997 (for amendment of plaint) wherein it is stated that plaint B schedule is part of Government puramboke way subdivided in survey 360/1-C, 347/3-C-3 and the said puramboke way is shown in the resurvey (which was finalised after disposal of the case by the trial court) as comprised in survey number 36 coming in block No.29, appellant learned about the said fact only recently that there is no need for establishment of right of easement and the appellant only wanted a decree for prohibitory injunction against respondents interfering with plaint B schedule way (as if it is a public way). Appellant also filed I.A.No.233 of 1997 in the first appellate court under Order 41 Rule 27 of the Code of Civil Procedure (for short, “the Code”) to receive eight documents as additional evidence to prove her claim that the disputed way is Government puramboke way and that resurvey in that regard was finalised only in February, 1996 (after disposal of the suit). First appellate court while disposing of the appeal dismissed I.A.No.228 of 1997 holding that averments in the plaint (regarding easement) amounted to admission of ownership of respondents over the S.A.No.630 of 1998G : 5 : disputed way and hence appellant cannot be permitted to resile from the said admission. Reliance was placed on the decision of the apex court in Heeralal Vs. Kalyan Mal & Ors. (1998(1) SCC 278). First appellate court observed that in the light of that decision, decision of this court in Pavithran Vs. Narayanan (1997 (2) KLT 371) is not good law. I.A.No.228 of 1997 was dismissed vide judgment in the appeal. So far as I.A.No.233 of 1997 is concerned, there is no mention about that application or the documents produced along with it in the judgment under challenge but I find from I.A.No.233 of 1997 that an order is seen passed on that application on 20-07-1998 (there appears to be some overwriting on the date) which states that documents were intended to prove that disputed way is part of Government puramboke way, amendment to introduce that plea has been disallowed vide order on I.A.No.228 of 1997 and hence, there is no scope for admitting additional evidence. Learned counsel for appellant would contend that the said order appears to have been written on I.A.No.233 of 1997 only after 18-08-1998 in that, in the attested photocopy of I.A.No.1232 of 1997 issued to the appellant on 18-08-1998 order dated 20-07-1998 does not figure. I have verified original of I.A.No.233 of 1997 and certified photocopy of the same issued to the appellant on 18-08-1998. It is seen from the original application S.A.No.630 of 1998G : 6 : that the order is written in hand on the inner side of docket sheet. In the certified photocopy of the said application on the inner side of the docket sheet there is the last portion of the application written. It is seen from the original application that the last portion of the application ends not on the inner side of the docket sheet, but, on page No.2 of the application followed by the docket sheet. Since copy of the order was not applied for along with that application, only copy of I.A.No.233 of 1997 may have been issued and it is possible that the inner side of the docket sheet where the order is written was not photocopied and instead, only the affidavit and application along with the outer side of docket sheet was copied and that resulted in the discrepancy which the learned counsel has pointed out. Whatever that be, there is an order on I.A.No.1232 of 1997 rejecting the same for the reason stated above. Holding that it “appears” that trial court has decided the matter correctly first appellate court concurred with the view of trial court and dismissed the appeal. Learned counsel for appellant contend that nowhere in the plaint there is any specific plea of easement by way of necessity or prescription though, there is a vague mention that appellant has right of 'easement' over the disputed way and a declaration of easement is prayed for but, that did not take away the case of appellant in the plaint that disputed plaint B schedule formed part of S.A.No.630 of 1998G : 7 : the public way and the relief of injunction prayed for on that premise. Learned counsel invited my attention to the definition of 'easement' in Section 4 of the Indian Easements Act (for short, “the Act”). According to the learned counsel going by the definition, 'easement' could be of various type referred to in the Act. The argument in short is that merely for the reason that in the plaint it is averred that except plaint B schedule appellant has no other means of access to reach plaint A schedule and that appellant has right of easement no inference is possible that what is pleaded by the appellant is a right of easement by way of necessity. Learned counsel submits that plea that the way which according to the appellant is a public way has been in use by herself, predecessor and others for since long cannot amount to a claim of easement by prescription and the courts below were under a wrong impression that what is pleaded by the appellant is a claim of easement either by way of necessity or prescription admitting title of respondents over plaint B schedule It is also the contention of learned counsel that even if a claim of easement was also raised, it is not as if appellant was precluded from relinquishing that claim and confining her plea to the claim of public right over the disputed way. Learned counsel argues that it was during pendancy of the appeal before first appellate court that the true nature of the way was revealed to S.A.No.630 of 1998G : 8 : the appellant and thereon she filed I.A.Nos.228 of 1997 and 233 of 1997. Learned counsel has referred me in detail through the documents produced along with I.A.No.233 of 1997. According to the learned counsel, these documents would show that the entire way including disputed plaint B schedule is Government puramboke way and that as early as on 03-09-1101 (see document No.2 produced along with I.A.No.233 of 1997), one Dr. Palpu (whose property is shown by the Advocate Commissioner in Ext.C1(a) as situated towards east of the property admittedly belonging to the respondents and on the south of the way leading from TB road in continuation of which according to the appellant lies plaint B schedule reaching plaint A schedule). According to the learned counsel, the said Dr. Palpu made an attempt to get the entire puramboke land including the way assigned to him vide document No.5 dated 20-07-1926. The Government directed the Municipality that the latter could construct a compound wall only after leaving a lane having width of 12 feet from the public road (TB road) up to the gate of Dr. Palpu and also a lane of similar width on the southern side of puramboke land through its whole length to serve as a passage for three other houses, one on the east and two other houses on the west of property of Dr.Palpu. Learned counsel invited my attention to the rest of the documents produced along with S.A.No.630 of 1998G : 9 : I.A.No.233 of 1997 to buttress his contention that the disputed way formed part of Government puramboke and has been subdivided in survey No.360/1-C, 347/3-C-3 and that in the resurvey it has been shown in R.S.No.36 in block No.29. Learned counsel also invited my attention to Ext.A1, assignment deed in favour of appellant where according to the learned counsel there is reference to the disputed way reaching the eastern portion of plaint A schedule. Learned counsel submits that before Ext.A1, only access for respondents from the TB road to reach plaint A schedule was disputed B schedule and in continuation of that, through the way on the side of property of Dr. Palpu. According to the learned counsel even in Exts.X1 and X2 produced in the trial court there is reference to the disputed way being government land. These aspects were not taken into consideration by the courts below. Learned counsel for respondents would contend that even as per plaint B schedule, it is only a portion of the disputed pathway adjoining the property of the respondents on the further south. According to the learned counsel even the resurvey was objected and challenged by the appellant by a writ petition and thereafter resurvey has been modified and hence neither Exts.X1 and X2 produced in the trial court nor the documents produced along with I.A.No.233 of 1997 could be taken into account. Otherwise there is only a vague plea of easement S.A.No.630 of 1998G : 10 : made by the appellant which is not established and hence dismissal of the suit and appeal are justified. 3. Having heard counsel on both sides and perused judgments under challenge, in the way I propose to dispose of this appeal it is not necessary for me to go into the question whether documents produced along with I.A.No.233 of 1997 are either acceptable or, even if accepted would prove the case of the appellant that plaint B schedule is part of Government puramboke way. I am at the question that whether first appellate court ought to have allowed I.A.No.228 of 1997. It is seen from judgment of the first appellate court that learned Sub Judge also was not very much convinced about the finding of the trial court in that it is stated that it “appears” that trial court considered the evidence and it “appears” that trial court is justified in rejecting the claim (of easement) of appellant. First appellate court made a sweeping observation about its considering the evidence but there is no discussion of evidence of PWs.1 to 6 and the documents produced by appellant in the trial court. Instead, referring to the (so called?) discrepancy in the contention of the appellant, first appellate court found that claim of easement cannot stand but, without mentioning anything about the claim of appellant that disputed way formed part of public way. Going through the judgment of first appellate court, I S.A.No.630 of 1998G : 11 : am persuaded to think that there is no proper decision on merit after referring to the respective contentions of parties and referring to the oral and documentary evidence produced by both sides as held in Madhukar & Ors. Vs. Saujram & Ors. (2001(4) SCC 756). The first appellate court being the final fact finding court should have considered the evidence on record and taken a proper decision. Hence judgment of the first appellate court cannot stand. 4. The first appellate court rejected I.A.No.228 of 1997 for amendment of plaint on the ground that it is inconsistent with the plea in the plaint regarding easement (by way of necessity or prescription). It is true that there is a plea in the plaint that appellant has right of easement over the disputed way and a declaration of that easement over the disputed way and a declaration of that easement is also prayed for. But it is not stated that the easement claimed is by way of necessity or by prescription. In fact, in the plaint as originally pleaded appellant had also claimed that plaint B schedule is part of public way though it was not stated in so many words that it is Government puramboke way which fact according to the appellant came to her knowledge only during pendancy of the first appeal. I must bear in mind that though a declaration of right of easement was prayed for as relief No.2, relief No.1 prayed for is a decree for prohibitory injunction and if the S.A.No.630 of 1998G : 12 : courts below found that plaint B schedule is part of public way as pleaded by the appellant, it may have been possible to grant a decree for prohibitory injunction based on that finding. The trial court also failed to take note of this aspect. I must also bear in mind that it was open to the appellant to raise inconsistent pleas regarding B schedule way but, of course she had to confine herself to one or the other plea at the time of the trial. It is in answer to the contention raised in the written statement as if the disputed plaint B schedule formed part of property of respondents that plaint was amended to incorporate paragraph 8(a) and C schedule. Even if it is assumed that there is an admission regarding right of easement as first appellate court would point out, it was not as if a party could not explain his admission. Appellant has a case that she got information about the true nature of the disputed way only during pendancy of the first appeal. These aspects ought to have been taken into account by the learned Sub Judge while deciding I.A.No.228 of 1997 but of course, I am not deciding the question whether that application ought to have been allowed or not. Having regard to the nature of contention raised in the plaint even before amendment in the trial court and taking into account that even in the trial court appellant made an attempt to prove the nature of the disputed way as public way by producing Exts.X1 and X2, I am S.A.No.630 of 1998G : 13 : persuaded to think that appellant has to be given an opportunity to prove the case pleaded by her. The proper course is to send the case to the trial court for fresh disposal. Dismissal of I.A.Nos.228 and 233 of 1997 are set aside and those applications along with the documents produced in appeal are also transmitted to that court for decision in the light of the position of law. Learned Munsiff shall dispose of I.A.Nos.228 of 1997 and 233 of 1997 before proceeding with trial of the case. While considering these applications trial court necessarily shall consider the objections raised by respondents to the said applications. I make it clear that it will be open to both sides to adduce further evidence if they are so advised. So far as contention of respondents that resurvey has been modified on the objection of the appellant is concerned, I make it clear that it will be open to the respondents to prove that as well. Resultantly judgment and decree of the courts below are set aside and the case is remanded to the court of learned Munsiff, Neyyattinkara for disposal in accordance with law and after giving both sides opportunity to adduce further evidence as stated above. Registry shall send the records to the court of learned Munsiff. Parties shall appear in that court on 20-05-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-