IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 SA.No. 990 of 1996(A) ------------------------------ AS.189/1991 of IIND ADDL.DISTRICT COURT, THRISSUR OS.1932/1985 of II ADDL.MUNSIFF COURT,THRISSUR .................... APPELLANT(S): APPELLANTS/DEFENDANTS 1, 2 AND 5 ------------------------------------------------------------------------------- 1. JANAKI, W/O. CHOONDAKKATTIL LATE KUNJALAM, KOMBAZHA DESOM, PAMANCHERY VILLAGE, THRISSUR TALUK. 2. CHANDRAN, S/O.LATE KUNJALAN AND IST APPELLANT DO. DO. 3. ACHUTHAN, S/O. LATE KUNJALAN AND IST APPELLANT. BY ADVS. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN RESPONDENT(S): RESPONDENT/PLAINTIFF AND DEFENDANTS 3,4 AND 5 --------------------------------------------------------------------------------------------------------- 1. VARGHESE, S/O.MUTANATTU MATHEW, KOMBAZHAA DESOM, PANACHERY VILLAGE, THRISSUR TALUK. 2. SUNDARAN, S/O.LATE CHOONDAKATTIL KUNJALAN, KOMBAZHA DESOM, PANACHERY VILLAGE, THRISSUR TALUK. *3. SAHADEVAN, S/O. CHOONDAKKATTIL KUNJALAN, KOMBAZHA DESOM, PANACHERY VILLAGE, THRISSUR TALUK. (DIED) *4. SARASWATHY, D/O.CHOONDAKKATTIL LATE KUNJALAN, KUMBAZHA DESOM, PANACHERY VILLAGE, THRISSUR TALUK.(DIED) *THE APPELLANTS AND THE 2ND RESPONDENT ARE RECORDED AS THE LEGAL HEIRS OF DECEASED RESPONDENTS 3 AND 4 AS PER THE ORDER DTD. 3.11.2010 VIDE MEMO C.F.6345/2010 DTD 19.10.2010. R1 BY ADVS. SRI.M.R.VENUGOPAL, SMT.DHANYA P.ASHOKAN . THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO. 2211/1996 IN S.A. NO.990/1996 DISMISSED 27/05/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.990 of 1996 ------------------------------------- Dated this the 27th day of May 2011 Judgment Disappointed with the concurrent decrees against them, the defendants in OS No.1932/85 before the Munsiff's Court, Thrissur, have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff, who is the admitted owner of 28 cents of land comprised in Survey No.2198/3 and 2199/3 of Panamchery village, laid the suit on the allegation that the pathway which provides access to his property from the outside world is being obstructed to by the defendants. In the plaint, it is stated that the plaintiff has acquired prescriptive right of easement to use the way which passes through the eastern boundary of the defendants' property. 3. The defendants resisted the suit, pointing out that there is no way in existence as alleged in the plaint SA 990/96 2 and that the plaintiff has alternate means of access to his property. On these grounds, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 and B2 marked. Exts.C1 to C2 are commissioner's report and plan. 5. The trial court, on an evaluation of the materials on record, found that there is a way in existence and granted a decree accordingly. The aggrieved defendants carried the matter in appeal as AS No.189/91 before the District Court, Thrissur. The lower appellate court confirmed the decree of the trial court, though for different reasons. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : SA 990/96 3 1. Without a prayer for declaration of right of easement by prescription, whether a suit for permanent prohibitory injunction is maintainable. 2. When the evidence regarding the nature of the possession of the plaintiff over a particular property is inconsistent and contradictory whether the plaintiff can be said to have proved his possession. 3. In a suit for injunction, in which easement right is claimed, whether a finding regarding the genuineness and existence of such a right of easement is necessary or not. 7. The learned counsel for the appellants contended that both the courts below have misdirected themselves both on facts and in law and have not considered the real issue that arises for consideration in the suit. The learned counsel drew attention of this court to the fact that proper issues have not been raised and that has resulted in miscarriage of justice. It is contended that the plaintiff in the plaint had claimed prescriptive right of easement over the pathway and on the next breath, he SA 990/96 4 denied that the defendants have any manner of right over the pathway. It was pointed out that unless it is found that either the pathway passes through the property of the defendants or it is independent of the property of the defendants, a decree could not have been granted. If it is found that the pathway runs through the property of the defendants, then, necessarily, the plaintiff had to prove the ingredients to attract prescriptive right of easement. In the case on hand, neither the trial court nor the appellate court, according to the learned counsel, has entered a finding as to whether the pathway runs through the property of the defendants or not. Attention was also drawn to the fact that the description of the pathway in the schedule is misleading and it is not identifiable, going by the description. These aspects have been omitted to be noticed by the courts below and that has resulted in an illegal decree. 8. Per contra, the learned counsel for the respondents contended that suit was one for injunction SA 990/96 5 simpliciter and the courts below have found that there is a way in existence as disclosed by the commissioner's report and relief was granted in respect of that way. The defendants in the written statement had taken inconsistent statements and it is unnecessary to go into the questions whether the defendants have title over the property, which was claimed as way by the plaintiff. It is contended that there were no grounds to interfere with the judgment and decree of the courts below. 9. At the outset itself, it may be said that this court is unable to accept the contentions raised by the learned counsel for the respondent. It is not clear from the plaint as to whether it is easement right or any other right that is claimed by the plaintiff. It is interesting to note that the contention of the plaintiff is that the pathway lies outside the property of the defendants. 10. It is unfortunate that the courts below have not raised proper issues for consideration. Necessarily, there has to be a finding as to the pathway over which the SA 990/96 6 plaintiff lays claim, runs through the property of the defendants. It is here that one has to notice the schedule to the plaint wherein the pathway is described. It does not show the boundaries at all nor does it disclose the two termini of the way. It is true that the commissioner has made mention of a way and has shown the same in his sketch. But, it is not clear from the report whether it runs through the property of the defendants or not. All that is stated in the commissioner's report is that the way runs along the eastern boundary of the defendants' property. Merely because a way is seen, it does not mean that a decree has to follow. At any rate, the two terminus ought to have been specified so as to identify the way over which right is claimed by the plaintiff. 11. In the case on hand, the property of the defendants is situated on the southern side and further south is a road. May be that the way claimed by the plaintiff is the only means of access to his property. It has necessarily to be found whether the way runs through the SA 990/96 7 property of the defendants or it is an independent way over which the defendants have no manner of right. Both the courts below have placed reliance on the commissioner's report without adverting to the legal aspects of the issues involved in the case. Going by the decree now granted, it would appear that the way can begin from any portion on the southern boundary of the property owned by the defendants and end at any point, on the southern boundary of the property of the plaintiff. Both the courts below have missed to consider these vital aspects and have also not adverted to the pleadings in the proper manner. 12. In fact, the lower appellate court observes that the plaintiff claims ownership over the pathway as well as prescriptive right of easement. If that be so, one fails to understand how a decree could have followed without considering as to whom the pathway actually belonged to. The appellate judgment has not adverted to the relevant aspects and has merely, on a premise that since the commissioner has found a way, it will be sufficient to grant SA 990/96 8 a decree. According to that court, it is unnecessary to go into the question regarding ownership or title of the pathway to grant a decree in favour of the plaintiff. One is unable to concur with the reasoning shown by both the courts below as the relevant aspects have not been considered. The result is that this court is unable to sustain the judgment and decree of the courts below and they are liable to be set aside. 13. The learned counsel for the respondents then pointed out that they may be given an opportunity to substantiate their case before the courts below. They may also be allowed to adduce further evidence, if occasion so arises. The fact remains that proper issues have not been raised and the real issues have not been considered. It is therefore, felt that an opportunity must be given to the plaintiff to substantiate his claim. 14. Accordingly, the appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh disposal SA 990/96 9 in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 05.07.2011. Being a suit of the year 1985, the trial court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of parties before it. The parties will be free to adduce further evidence, if they so choose. P.Bhavadasan, Judge sta SA 990/96 10