IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 SA.No. 124 of 2002 (F) & CROSS OBJECTION -------------------------------------------------------------- OS.1297/1993 of I ADDL.M.C.,ERNAKULAM AS.110/1996 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANTS/RESPONDENTS BEFORE THE LOWER APPELLATE COURT AND DEFENDANTS BEFORE THE TRIAL COURT. ------------------------------------------------------------------------------------------------------------------ 1. K.P.MOHAN, AGED 48, KALUKURUMBANTHARA, APPANGAD, NJARAKKAL. 2. K.P.SANTHI, AGED 43, W/O.RAJAPPAN, CHENCHERIPARAMBIL,CHENGAMANAD P.O., ALUVA. BY ADVS. SRI.VARGHESE C. KURIAKOSE RESPONDENT/APPELLANT BEFORE THE LOWER APPELLATE COURT AND PLAINTIFF BEFORE THE TRIAL COURET --------------------------------------------------------------------------------------------------------------- NARAYANA PILLAI, AGED 63, S/O. LATE ACHUTHAN PILLAI, KALUKURUMBANTHARA HOUSE, PADIVATTOM, EDAPPALLY, EDAPPALLY SOUTH VILLAGE. BY ADVS. SRI.M.M.MEERAN SRI.M.A.ABDUL HAKHIM BY GOVERNMENT PLEADER, SRI.P.R.JAYAKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, ALONG WITH SA NO. 130 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.S.GOPINATHAN, J. ----------------------------------- S.A.Nos.124 & 130 OF 2002 ------------------------------------ Dated this the 21st day of December, 2010 C O M M O N J U D G M E N T ~~~~~~~~~~~~~~~~~~~~ The appellants are the defendants in O.S.No.1297/93 on the file of the Munsiff's Court, Ernakulam. The respondent herein, who is none other than the uncle of the appellants, instituted the above suit seeking a decree of permanent prohibitory injunction to restrain the appellants from interfering with 'B' schedule pathway. 2. The appellants in their written statement contended that the appellants and the respondent got their respective property by virtue of a partition deed, wherein a pathway with a width of one kole is provided. The 'B' schedule property was described in the plaint by incorporating a portion of the property belonging to the appellants and that there is no such pathway as described in the 'B' schedule and that the respondent is not entitled to a decree for prohibitory injunction. It was further contended that the respondent had been attempting to trespass into the property allotted to the S.A.Nos.124 & 130/2002 2 appellants by virtue of Ext.A1 partition deed and that the respondent had been frequently destroying the fence along the northern boundary of the property allotted to the appellants. It was also contended that the respondent had been objecting the appellants from maintaining the northern boundary of the property allotted to the appellants. The appellants sought for a counter decree; i) By a prohibitory injunction restraining the respondent from causing obstruction to the construction of a compound wall or fence to the northern boundary of the property allotted to the appellants. ii) For a mandatory injunction commanding the respondent for the removal of the structures put up by him in the pathway having a width of one kole. 3. After raising the issues, the parties were sent for trial. The respondent and another were examined as PWs 1 and 2. The 1st appellant was examined as DW1. Exts.A1 to A3 were marked on the side of the respondent. On the side of the appellants, Exts.B1 and B2 were marked. Ext.C1 report of the Commissioner and Ext.C1(a) sketch were also marked. S.A.Nos.124 & 130/2002 3 4. The trial court on appraisal of the evidence found against the respondent. Consequently, the suit was dismissed. During the course of the arguments, the prayer for mandatory injunction was given up by the appellants. The trial court granted a decree of permanent prohibitory injunction restraining the respondent from causing obstruction to appellants constructing the compound wall or erecting fence on the northern side of the property allotted to the appellants. Aggrieved by the above judgment and decree, the respondent preferred appeal as A.S.No.110/1996. In the judgment of the trial court, there was an observation that the pathway mentioned in Ext.A1 partition deed was set apart to the share of the respondent and he had got title over the pathway and he has got the right to alienate the same. Assailing that observation, the appellants preferred appeal as A.S.No.141/1996. Both the appeals were disposed by the impugned common judgment dated 14.9.2001. A.S.No.110/1996 was allowed in part, whereby the decree of permanent prohibitory injunction granted against the respondent was set aside and the impugned decree dismissing the suit was confirmed. A.S.No.141/1996 was dismissed. S.A.Nos.124 & 130/2002 4 Against the decree and judgment of the appellate court, vacating the decree of prohibitory injunction against the plaintiff, the defendants had preferred Second Appeal No.124/2002. As against the judgment and decree dismissing the A.S.No.141/1996, S.A.No.130/2002 was preferred by the defendants. The following is the substantial question of law raised in the appeal memorandum in S.A.No.124/2002. “1. Whether the lower appellate court is right in its view that the counter claim of prohibitory injunction granted by the trial court in favour of the defendants is liable to be vacated for the reason that the property in respect of which the decree was granted has not been separately scheduled to the written statement notwithstanding the fact that the identity of the property was never in dispute?” 5. In S.A.No.130/2002, the first substantial question of law raised is exactly identical to the question of law raised in S.A.No.124/2002. The second question of law raised is as follows: S.A.Nos.124 & 130/2002 5 “2. Is the lower appellate court justified in dismissing A.S.No.141/1996 which was instituted by the appellant for expunging certain unwarranted observations in the judgment, even after holding that the observation are wrong attributing them to a “wrong impression” carried by the lower court? Does not the clarification given by the court in the context of the observations assailed by the appellant give arise to more confusion and is not the same liable to be deleted?” 6. The plaintiff had filed Cross Objection in S.A. 124/2002. The following question of law is seen formulated in the Cross Objection. “A) Whether the court below are right in dismissing the suit for injunction restraining the appellants from interfering with the convenient enjoyment of the B schedule pathway when the B schedule pathway was constructed by widening the one kole width pathway over which all the parts (parties) have a right of way.” 7. I have heard Sri. Varghese Kuriakose, learned counsel appearing for the appellants and Sri. Abdul Hakim, the learned counsel appearing for the respondent. The decree for S.A.Nos.124 & 130/2002 6 permanent prohibitory injunction sought against the plaintiff was seen declined by the appellate court for the reason that the appellants had not scheduled the property over which the injunction was sought for. The argument of the learned counsel appearing for the appellants is that it was an omission committed by the defendants and the written statement ought to have been returned for curing the defect. In support of the above arguments, the learned counsel had given reliance to the decision of the Apex Court in Prathibha Singh v. Santi Devi Prasad [2003(2) SCC 330]. It was further argued that even if the property is not specifically scheduled in the written statement in the light of the pleadings on either side, there was no difficulty at all to identify the property and that the decree of permanent prohibitory injunction could be enforced against the plaintiff even without the property separately scheduling. According to the learned counsel, after the execution of Ext.A1, the plaintiff very deceitfully obtained Pattayam in respect of the entire property covered by Ext.A1 and subsequently Ext.B1 document was executed in favour of the appellants regarding the properties set apart to the share of the appellants by virtue of S.A.Nos.124 & 130/2002 7 Ext.A1 partition deed and in that partition deed, the property is specifically scheduled and the respondent could not now turn round and claim any right over the property covered by Ext.B1. It is further submitted that the appellants are seeking decree of permanent prohibitory injunction to restrain the respondent from obstructing the appellants in constructing the compound wall along the northern boundary of the property covered by Ext.B1. 8. Going by Ext.B1 as well as the pleadings on record, I find that there is some merit in the submission made by the learned counsel for the appellants. The learned counsel for the respondent submitted that without getting instruction from the respondent, he is not in a position to say whether the respondent had got any right or claim over Ext.B1 property or not. Going by the pleadings, I find little merit to come to a conclusion that the respondent had got any right over the property set apart to the appellants by Ext.B1. However, the learned counsel for the respondent fairly conceded that Ext.B1 is a document executed by the respondent. S.A.Nos.124 & 130/2002 8 9. In the above circumstance, I find no reason to decline the prayer for prohibitory injunction restraining the respondent from causing any obstruction to the appellants in erecting a compound wall along the northern boundary of Ext.B1 property, especially, when the description of the property scheduled in Ext.B1 contained side measurements. In the event, there arise any doubt as to what exactly the boundary line, there is no difficulty to find out the boundary line. It can be easily done by measuring the property with reference to Ext.B1. In this view of the matter, especially, having due regard to the nature of dispute between the appellants and the respondent, who are nephews and uncle, declining the decree of permanent prohibitory injunction would lead to multiplicity of litigation. I find that the appellants are entitled to get the decree of permanent prohibitory injunction granted by the trial court restored. The appellate court was not at all justified in vacating the decree of permanent prohibitory injunction. 10. As regards the prayer for prohibitory injunction claimed by the respondent his claim is that the pathway set apart S.A.Nos.124 & 130/2002 9 in Ext.A1 partition deed was subsequently widened on mutual consent. The courts below had concurrently found that plea against the respondent. The pathway was scheduled after incorporating a portion of the property in addition to the pathway described in Ext.A1. In the above circumstance, the prayer for decree of permanent prohibitory injunction sought by the respondent was rightly declined by the court below. I find no reason to interfere with. 11. As regards the observation made by the trial court, there is no room for any grievance for the appellants, because no relief was granted on the basis of that observation. Whatever may be the observation regarding the title, the right of way obtained by the appellants by virtue of Ext.A1 would no way be affected. Even if the respondent alienates the title in respect of the pathway, that would be subject to the right of the appellants to walk over the same. Since it was not at all a matter in issue, the observation by the trial court regarding the title over the pathway is unwarranted. The learned counsel for the appellants also conceded that such observations would no way affect the S.A.Nos.124 & 130/2002 10 right of the appellants to use the pathway described in Ext.A1 partition deed. In the above circumstance, I find no merit in the S.A.No.130/2000. In the result, S.A.No.124/2002 is allowed. While reversing the impugned decree and judgment, the decree of prohibitory injunction granted by the trial court in favour of the appellants would stand restored. Ext.B1 would be appended with the decree. The Cross Objection and S.A.No.130/2002 are dismissed. The parties are directed to suffer their costs. (P.S.GOPINATHAN, JUDGE) ps