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. 1359 OF 2009() ---------------------- {A.S.NO.59/1998 OF THE SUB COURT, OTTAPPALAM IN O.S.NO.211/95 OF THE MUNSIFF'S COURT, OTTAPPALAM} ........................ APPELLANT(S)/RESPONDENTS/PLAINTIFF: ------------------------------------------------ BHASKARAN,AGED 58,S/O.RAMAN EZHUTHASSAN, CHELAKKADUTHODI VADAKKETHIL HOUSE, EZHUVANTHALA AMSOM AND DESOM,OTTAPPALAM TALUK. BY ADV. SRI.T.SETHUMADHAVAN RESPONDENT(S)/APPELLANTS 2 TO 4 & DEFENDANTS 2 TO 4: --------------------------------------------------------------------- 1. SHOBHA, AGED 44,D/O.LATE CHATHU EZHUTHASSAN-D1. 2. THANKAMMA, AGED 42,D/O.--DO-- 3. SARASWATHY, AGED 42,W/O.BALACHANDRAN, D/O.LATE CHATHU EZHUTHASSAN-D1. RESIDING AT MAMPALLIYIL EZHUVANTHALA AMSOM AND DESOM, OTTAPPALAM TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON 01/10/2010 PASSED THE FOLLOWING: “C.R.” S.S.SATHEESACHANDRAN ---------------------------------------- R.S.A.No.1359 of 2009 ----------------------------------------- Dated this the 1st day of October, 2010 JUDGMENT Plaintiff in a suit for injunction is the appellant. A decree as canvassed by the plaintiff in his suit was granted by the trial court. But, in appeal preferred by the defendants, the decree of the trial court was reversed and the plaintiff was non-suited. Aggrieved by the decision so rendered by the lower appellate court, the plaintiff has preferred this appeal. 2. Plaint schedule properties, two items, are purchased by the plaintiff and his brother respectively under Exts.A1 and A2 sale deeds. Admittedly, both these properties are lying contiguously as a single plot. Prior to the purchase of the above land under Exts.A1 and A2 by the plaintiff and his brother, the defendants have obtained right, title and R.S.A.No.1359 of 2009 2 possession over the properties situate to the east of both the above items and also to the west of plaint item No.2. Plaintiff laid the suit for a decree of perpetual prohibitory injunction against the defendants alleging threat of trespass from them over a portion of plaint item No.2 property over its southern side to cut open a pathway for having a direct access from their property on the eastern side of the plaint items to their property situate on the western side of item No.2. A decree for perpetual prohibitory injunction was, therefore, applied for against the defendants to restrain them from trespassing upon or cutting open any pathway through the plaint property. 3. The defendants resisted the suit contending that previously a pathway was in existence on the northern side of plaint item No.1 property and that was surrendered by them R.S.A.No.1359 of 2009 3 to the plaintiffs on the basis of an agreement (Ext.B4) entered with the brother of the plaintiff by which a new way was provided through the southern side of plaint item No.2 property to the defendants for having access from their eastern property to the west of item No.2. It was the further case of the defendants that, previously, the properties covered by Exts.A1 and A2 sale deeds conveyed to the plaintiffs and that of the defendants situate to the east of the plaint properties and west of item No.2 property, and also the northern property of the plaint properties belonged to common title holders, Kizhakkethil Karappan and Narayanan, from whom, both, the plaintiff and his brother, and the defendants, purchased their respective properties. When the plaintiff purchased the properties to the north of the plaint property, a demand for surrender of the existing pathway was made to have enjoyment of R.S.A.No.1359 of 2009 4 items 1 and 2 properties as a compact plot and, thereupon, on the basis of the mutual agreement, as reflected in Ext.B4 document, surrender of the existing pathway was made on providing an alternate way through the southern portion of item No.2 property, according to the defendants. 4. Though the plaintiff disputed the genuineness of Ext.B4 agreement, which was stated to have been entered by his brother with the defendants, contending it as a fraudulent document, the trial court, on the basis of the materials tendered in the case, concluded that the agreement is true and genuine. However, the case of the defendants, with respect to the surrender of the pathway on the northern side of the plaint property and carving out a new pathway on such surrender, through the southern extremities of item No.2 property, was found not acceptable to the trial court, since it was R.S.A.No.1359 of 2009 5 of the view that the defendants had no consistent case with respect to the way which existed earlier. The first appellate court, after re-appreciation of the evidence, having regard to the fact that the suit was one for perpetual prohibitory injunction, wherein the plaintiff sought for such discretionary relief, taking the view that the inconsistent stand taken by the defendants over the location of the way which was claimed as existing but surrendered for the alternate way could not be given any consequence where the entitlement of the plaintiff for the relief is found to be meritless by the materials tendered in the case. In that view of the matter, the lower appellate court reversed the decree of injunction granted by the trial court and non- suited the plaintiff. 5. Before me, the learned counsel for the plaintiff /appellant assailed the dismissal R.S.A.No.1359 of 2009 6 of the suit by the lower appellate court stressing upon that the diverse findings entered by the two courts below with respect to the entitlement of the plaintiff for the decree applied for required a re-look and consideration by this court by entertaining this appeal and receiving it on file. The lower appellate court went wrong in interfering with the finding of the trial court and it has misconstrued and misread the evidence in the case and, more particularly, the features evidenced by Ext.C1 report prepared by the advocate commissioner that the way cut through item No.2 property was immediately on or before the institution of the suit, thus, negativing the case of the defendants as to the existence of such pathway on surrender of another way enjoyed by them earlier, over which inconsistent pleas were raised in their written statement, is the submission of the counsel to R.S.A.No.1359 of 2009 7 persuade me that the present appeal involves a substantial question of law for consideration and thus to receive it on the file of this court for disposal on merit, after notice to the respondents and hearing the parties. 6. Perusing the judgments rendered by both the courts below with reference to the submissions made by the learned counsel for the appellant, I find that no interference with the judgment rendered by the lower appellate court non-suiting the plaintiff, in the facts involved in the case, is called for. Not only that, there is no substantial question of law involved in the present appeal for its entertainability as contemplated under Section 100 of the Code of Civil Procedure, it is seen, the finding entered by the lower appellate court to hold that the plaintiff is not entitled to the discretionary relief of perpetual prohibitory injunction in reversal of R.S.A.No.1359 of 2009 8 that of the trial court, which held otherwise, is proper, correct and fully justified. Plaintiff has not mounted the box to swear in support of the relief claimed by him in his suit. His brother was examined as PW.1. True, the plaintiff and his brother purchased the two items of properties, but under separate sale deeds, which are described in the plaint. Genuineness of Ext.B4 agreement, the execution of which was denied by PW.1, the brother of the plaintiff, was upheld by both the courts. Ext.B4 agreement which was suppressed in the plaint cuts at the root of the claim of the plaintiff for the discretionary relief of perpetual prohibitory injunction against the defendants. Such an agreement, which has been found to be genuine, goes a long way in showing that a previously existing pathway, which was inconvenient to the enjoyment of the properties by the plaintiff, had been surrendered by the R.S.A.No.1359 of 2009 9 defendants on being provided with an alternate pathway. In the written statement filed by the defendants, there is some inconsistency as to the location of the previously existed pathway, whether it was to the north of both the properties covered by items 1 and 2 or only to the north of item No.2 property, cannot be given much significance where Ext.B4 agreement disputed by the plaintiff has been found to be true, which established by the statements therein that a new alternate pathway was provided to the defendants through the southern portion of item No.2 on surrender of another pathway enjoyed by them through the property of the plaintiff. There is also no merit in the submission made by the counsel that the report of the commissioner, which revealed that there was no way as claimed by the plaintiff through the southern portion of item No.2 property, but only cutting down portions of fences of item R.S.A.No.1359 of 2009 10 no.2 property indicating of the attempt of trespass, was decisive and most crucial in judging the merit of the equitable relief of injunction applied for in the suit. Ext.C1 report, which was on an ex parte order of commission and prepared over an inspection of the suit properties without prior notice to the defendants could not have been acted upon, without examining the advocate commissioner, who prepared such report. Copy of the report handed over to me reveals that the commissioner conducted such local inspection, as it being an emergent commission, without notice to the defendants. Presence of the defendants at the site when the inspection was conducted as stated by the commissioner in his report, is not at all sufficient to receive such report in evidence without such report being proved examining the commissioner before the court. Non-examination of the commissioner to prove R.S.A.No.1359 of 2009 11 the report prepared without prior notice to the defendants of his inspection impairs the evidenciary value of his report, which, at the most, could have been considered only for the purpose of passing orders on the interlocutory applications for interim relief of injunction which, of course, could be decided even on the basis of affidavits. But to claim a decree of injunction in the suit, the commission report prepared without prior notice to the defendants require to be proved by the examination of the advocate commissioner. The only witness examined by the plaintiff, as already indicated above, is PW.1 his brother, whose denial of execution of Ext.B4 agreement was found to be false by both the courts. As adverted to earlier, the suppression of Ext.B4 agreement in the plaint while seeking the discretionary relief of injunction from the court and the falsity of the case advanced by the plaintiff R.S.A.No.1359 of 2009 12 in denying the genuineness of Ext.B4 agreement which was set up by the defendants to assert their right that they are in enjoyment of a pathway, running through the southern portion of item No.2 property in lieu of surrender of a pathway running through another portion of the plaintiff's property, is decisive in entering a finding over the disputed pathway and also the entitlement of the plaintiff for the decree of injunction canvassed in his suit. The lower appellate court has appreciated the materials in the proper perspective in accordance with the settled principles of law and the conclusion drawn by that court to reverse the decree of the trial court holding that the plaintiff, in the proved facts of the case, is not entitled to the discretionary relief of injunction does not suffer from any infirmity and it deserves only to be confirmed. R.S.A.No.1359 of 2009 13 No question of law, leave alone any substantial question of law is involved in this appeal and as such, it cannot be entertained. The appeal is devoid of merit, and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.