IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 RSA.No. 636 of 2010() --------------------- AS.62/2001 of SUB COURT, OTTAPPALAM OS.187/1996 of MUNI-MAGI.COURT,MANNARKAD .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------- M.J.JOSEPH, AGED 72 YEARS, S/O.MANIYATH JOSEPH, THORAPURAM, NO.I. VILLAGE, MANNARKAD, MANNARKAD TALUK. BY ADV. SRI.S.CHANDRASENAN RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: ------------------------------------- 1. SASIKALA, AGED 51 YEARS, W/O.POOVATHINGAL JHOSE MATHEW, POOKUNNU DESOM, MANNARKAD-1 VILLAGE, MANNARKAD TALUK. 2. PADMINI AMMA, AGED 61 YEARS, D/O.VAZHAPPULLI MEENAKSHI AMMA, POOKKUNNU DESOM, MANNARKAD-1 VILLAGE, MANNARKAD TALUK. 3. NABEESHA UMMA, AGED 60 YEARS, D/O.KUNNAYATH KUNHIMOIDEEN, POOKUNNU DESOM, MANNARKAD 1 VILAGE, MANNARKAD TALUK. ADV. SRI.ROY CHACKO FOR R1 TO 3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON 01/10/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.636 OF 2010 ----------------------------------- Dated this the 1st day of October, 2010 J U D G M E N T Defendant is the appellant. Concurrent decision rendered by the two courts below granting a decree of perpetual prohibitory injunction in favour of the respondents against the appellant/defendant is challenged in the second appeal. 2. Plaint schedule property in respect of which injunction was sought for, is a pathway over which the plaintiffs claimed exclusive right on the basis of title. That property originally belonged to one Kamala Bai and her children and by an assignment deed executed by them, the vendors of the plaintiffs obtained possession thereof under Ext.A1 deed and, later, by virtue of Ext.A2 deed in favour of the plaintiffs, they got title, possession and enjoyment over the property, was their case. The appellant/defendant, a neighbouring property owner beside the plaint schedule pathway, has no right over such pathway but he RSA.NO.636/2010 2 made attempts to destroy the seperating fence on the southern side of his property with the plaint schedule, after making a road through his property so as to join it with the plaint pathway, for the purpose of disposing of his property after effecting division of it in plots, was the case of the plaintiffs for the relief of injunction set up in the suit. The defendant resisted the suit contending that the plaint schedule is a public way over which the plaintiffs have no exclusive right. It is further contended that the plaint schedule way connects two public roads, one on the east and the other on the west. On the materials tendered in the case by both sides, which consisted of PW1 and Exts.A1 and A2 for the plaintiffs, DW1 and Exts.B1 and B2 for the defendant and Exts.C1 to C5, the reports and plan prepared by an Advocate Commissioner, the trial court upheld the claim of the plaintiffs negativing the defenses canvassed to resist the suit claim. Decree passed by the trial court challenged in appeal by the defendant, after re-appreciation of the pleadings and evidence of the parties, was confirmed without any modification by the lower appellate court. RSA.NO.636/2010 3 3. I heard the learned counsel for the appellant. Both the courts below have misread, misappreciatied and misconstrued the evidence tendered in the case and that has led to forming wrong conclusion resulting in manifestation of injustice, is the submission of the learned counsel for the appellant for entertaining this appeal and for its disposal on merits after collecting the records of the case. Even Ext.A2 title deed of the plaintiffs on which, the suit claim for injunction was canvassed, clearly spells out that the plaint schedule is lying as a way and right of enjoyment over the same is not confined to the plaintiffs but to others as well, according to the counsel. Not only the plaintiffs but the public in the locality including the defendant have the right to use the pathway and there is evidence on record that the pathway joins at least a public road on its eastern side, according to the counsel. Overlooking the challenge raised that the suit is bad for non-joinder of necessary parties, the courts below have wrongly granted a decree in favour of the plaintiffs, according to the counsel. RSA.NO.636/2010 4 4. After going through the judgments rendered by the courts below with reference to the submissions made by the learned counsel for the appellant, it is seen that the findings of fact concurrently made by such courts based on the materials tendered in the case to grant the relief of injunction to the respondents/plaintiffs do not suffer from any infirmity, leave alone, give rise to any substantial question of law in the case for determination by this Court, which is essential to entertain a second appeal, as covered by Section 100 of the Code of Civil Procedure. Even the boundary description in title deeds of the defendant and his wife, over their properties adjoining to the plaint schedule pathway, it has been found by the lower appellate court, negatived the defense of the defendant as to having any right over that way. Plaintiffs had purchased the property covered by plaint schedule, to use it as a way for reaching their properties situate nearby, and in the conveyance deed executed in their favour (Ext.A2), a reservation had been made that their vendors can also make use of it, it is seen, was RSA.NO.636/2010 5 canvassed by the defendant to contend that the pathway does not belong to the plaintiffs alone but to others as well. Both the courts below have rightly and correctly repelled such a defense canvassed by the defendant to claim right over the pathway as the reservation in Ext.A2 document in favour of the vendors for use of the pathway is enjoyable by them and they alone, to have access to their property situate nearby. The defendant contended that the plaint schedule is a public way, but, he did not produce any scrap of paper to show that there was dedication of the pathway to the public, which is shown to be a registered holding as under ExtsA1 and A2 deeds. The Advocate Commissioner, who conducted local inspection has reported that the plaint schedule pathway which is connected to a public road in the east, terminates beside a canal in the west, negativing the defense canvassed by the defendant that to in the west also it is connected to a public road. Though the defendant has filed objections to the commission report, he did not take any steps to examine the Commissioner nor make an attempt to substantiate his objections. The lower appellate court has taken note that in RSA.NO.636/2010 6 Exts.B1 and B2, by which, the defendant has obtained property to the south of the plaint schedule pathway, the description of such properties in the documents is silent as to having any public way or even a way on its northern side. In Ext.B2 document, which related to the property purchased by the wife of the defendant, the description of the northern boundary of that property, it has been noticed by the lower appellate court, is shown as the property of Kamala Bai and her children, the executants of Ext.A1 sale deed. The defendant's wife purchased the property from Kamala Bai and others, and if at all any way or road separated the properties so purchased from the rest of the property of the vendors situate on the northern side, definitely, it would have reflected in her sale deed. In Ext.B2 document the northern boundary is shown as the properties of the vendors, Kamala Bai and others. Ext.A1 sale deed was later executed by Kamala Bai and another in favour of T.M.Sebastian and others, the vendors of Ext.A2 sale deed. It is evident that Kamala Bai and others had conveyed a portion of their registered holding situate on the northern side of the property covered by Ext.B2 RSA.NO.636/2010 7 sale deed, under Ext.A1 deed to the vendees therein. The vendees under Ext.A1 deed had conveyed whatever rights they had obtained over the plaint schedule in favour of the plaintiffs under Ext.A2 sale deed, but reserving right for them and also their assignees to use it as a pathway to reach their properties situate nearby. No material worth mentioning was tendered by the defendant to show that the plaint schedule, which continued as a registered holding of the executants of Ext.A1 deed, was dedicated to the public or any member of the public to make use of that way as of right. In such circumstances, the decree granted by the trial court, which was confirmed by the lower appellate court as well, deserve only to be upheld. There is no merit in the appeal, and, hence, it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp RSA.NO.636/2010 8