IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 RSA.No. 516 of 2003() ----------------------------- AS.284/2001 of II ADDL.DISTRICT COURT,ERNAKULAM OS.333/2000 of II ADDL.MUNSIFF'S COURT , ERNAKULAM .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------- C.K.DAMIEN, SON OF KAKO, RESIDING AT CHANNATTU HOUSE, NEAR KARSHAKA ROAD, VADUTHALA, CHERANALLUR VILLAGE, KANAYANNUR TALUK, KOCHI-22. BY ADV. SRI.K.SURENDRA MOHAN RESPONDENTS: RESPONDENT/DEFENDANT: ------------------------ ROSY, S/O. LATE XAVIER, RESIDING AT AMBUJA NIVAS, KARSHAKA ROAD, VADUTHALA, CHERANALLUR VILLAGE, KANAYANNUR TALUK, KOCHI-22. BY ADV. SRI.T.B.THANKAPPAN SRI.R.GIRISH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.S.A. NO.516/2003 ORDER ON IA. NO.264/2003 IN R.S.A. NO.516/2003 DISMISSED 02.01.2008 SD/- K.T.SANKARAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss K.T. SANKARAN, J. ................................................................................... R.S.A. No. 516 OF 2003 ................................................................................... Dated this the 2nd January, 2008 J U D G M E N T Though several substantial questions of law are seen raised in the memorandum of Second Appeal, at the time of admission on 10.12.2004, the Second Appeal was admitted only on the substantial questions of law formulated by the learned single Judge. The said substantial question of law reads as follows: “Whether the courts below have interpreted and construed Exts.A1 and A3 to A7 in accordance with law?”. Therefore the aforesaid substantial question of law alone need be considered in this Second Appeal. 2. The appellant filed the suit for “permanent prohibitory injunction restraining the defendant or her men or agents from trespassing into the plaint schedule plaint schedule property, committing any waste therein or preventing the enjoyment and possession of the plaintiff in any any manner”. The plaint schedule description is as follows: “Road starting from Karshaka Road leading towards north having a length of 34.15 Mts. and a width of 4.65 Mts. from the beginning up to a length of 6 Mts. and thereafter 3.60 Mts. till the end and ends at the turning towards west.”. The extent of the plaint schedule property is shown as “about 3 cents”. 3. The disputed pathway lies on the eastern side of the defendant's property. That pathway touches the Karshaka road on the southern side. The plaintiff's property R.S.A. No. 516 OF 2003 2 is on the north western side of the defendant's property. The same way leads to the plaintiff's property as well. It has come out in evidence that there are other properties belonging to the plaintiff's brothers, situated nearby and the way leading to their property is the same pathway. The dispute centers round the right of the plaintiff over the pathway. According to the plaintiff, he has absolute title and possession over the disputed pathway. While according to the defendant, she has a right to use the pathway having a width of 8 links starting from Karshaka road . That right is reserved in favour of the defendant as per Ext. B3 assignment deed executed by Arch Diocese of Verapoly in her favour. 4. The plaintiff and two others claim title under Arch Diocese of Verapoly . As per Ext.A1 assignment deed executed by the Arch Diocese of Verapoly, two items of properties have been assigned in favour of the plaintiff. Item No.1 in Ext.A1 is having an extent of 1.345 cents while item No.2 is having an extent of 3.879 cents. The recital in Ext.A1 which is relevant for consideration of the Second Appeal reads thus: R.S.A. No. 516 OF 2003 3 5. The various averments in the plaint when considered along with the schedule to the plaint would indicate that the plaintiff is claiming exclusive right, title and interest over the extent of the pathway which is in excess of the extent shown in Item No.1 of Ext.A1. At the same time, the averments in the plaint do not indicate that item No.2 in R.S.A. No. 516 OF 2003 4 Ext.A1 is also included in the plaint schedule. What exactly is the plaint schedule property is not very clear from the averments in the plaint and the schedule. It is not clear whether the plaintiff was seeking an injunction in respect of both the items in Ext.A1. The case of the defendant is that she is having a right to use the pathway having a width of 8 links and according to the defendant this pathway is only item No.1 in Ext.A1 and it does not include item No.2 also. The disputes thus between the parties are: (1) Whether the plaintiff is entitled to get an injunction in respect of item No.1 of Ext,.A1; and (2) Whether the plaintiff is entitled to get an injunction in respect of the pathway having measurements and extent in excess of item No.1 of Ext.A1 which is included in the pathway now in existence. 6. For deciding the question No.1 referred to above, there is no difficulty. The plaintiff cannot claim absolute title in respect of item No.1 in Ext.A1. As rightly held by the courts below, the right of the defendant to use the pathway having a width of 8 links which is described as item No.1 in Ext.A1, cannot be disputed by the plaintiff. Therefore, the courts below were right in dismissing the suit in so far as it relates to the property covered by item No.1 of ExtA1 and which is also the same pathway having a width of 8 links referred to in Ext. B3 assignment deed in favour of the defendant. Therefore, I am of the view that the Second Appeal is liable to be dismissed in so far as the claim of the plaintiff in respect of item No.1 of Ext.A1 is concerned. As regards question No.2 referred to above, there is no clear pleading . Plaint schedule itself is not clear and specific. The disputed property is not properly identified with reference to R.S.A. No. 516 OF 2003 5 survey and measurements and therefore, the plaintiff is not entitled to any relief in respect of item No.2 of Ext.A1 particularly when item 2 of Exhibit A1 is not identified and since the plaint does not contain any recital with respect to any portion of item No.2 as being included in the plaint schedule. Shri K. Surendra Mohan, learned counsel for the appellant brought my attention to the measurement and description of item Nos. 1 and 2 of Ext.A1 and those in the plaint schedule and also the recitals in Exts. A1 and B3. His attempt is to substantiate the contention that what is described in the plaint schedule is not only item 1 but a portion of item no.2 in Ext. A1 as well. He submits that in respect of item No.2 of Ext.A1, the defendant cannot have any claim. The defendant having not put forward any claim in respect of item 2 of Exhibit A1, she is not entitled to object to the grant of relief in respect of item No.2 of Exhibit A1, submits the counsel. Shri T.B. Thankappan, learned counsel appearing for the defendant submits that so long as there is no clear pleading with regard to such a contention which is now developed at the Second Appeal stage and in respect of which there was no effective opportunity to the defendant to contest the case, the Second Appeal cannot be entertained on such a plea. The submission made by Shri T.B. Thankappan is justifiable. The pathway is not properly identified with measurement, survey and description. It is true that the Commissioner has prepared a sketch. It is also true that going by the Commissioner's sketch, the pathway is having a width of 4.6 meters on the southern side and 3.5 meters on the northern side. Taking into account the length and width of the pathway, probably Shri Surendra Mohan may be right in saying that the disputed pathway is having more extent than what is shown in item No.1 of Ext.A1. This is not a ground for granting a decree in favour of the plaintiff since the pathway in R.S.A. No. 516 OF 2003 6 so far as it relates to item No.2 is not identified. The relief cannot be granted also on the ground that there are no pleadings in the plaint in respect of inclusion of any extent of land shown in item No.2 of Ext.A1 in the plaint schedule. At the same time, it is to be made clear that the decision rendered by the courts below is in respect of only item No1 of Ext.A1 which is the same pathway as described in Ext. B3 assignment deed in favour of the defendant. In all other respects, the claim put forward by the plaintiff is to be reserved to be agitated in a properly constituted suit. It is made clear that the right, title and interest of the plaintiff over item No.2 of Ext.A1 is not decided in the present case since that dispute is outside the scope of the present suit. With the above observations, the Second Appeal is dismissed. No order as to costs. K.T. SANKARAN, JUDGE. lk R.S.A. No. 516 OF 2003 7 K.T. SANKARAN, J. ........................................................ R.S.A. No. 516 OF 2003 ......................................................... Dated this the 2nd January, 2008 J U D G M EN T