IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 RSA.No. 323 of 2008 --------------------------------- AS.106/2007 of DISTRICT COURT, KOTTAYAM OS.190/1999 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... APPELLANT/APPELLANT/IST DEFENDANT: AUGUSTINE, S/O.AUGUSTINE, KATTACKAL HOUSE, AMPARANIRAPPEL BHAGAM, KEEZHAMPARA KARA, KONDOOR VILLAGE. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS/RESPONDENTS/PLAINTIFF & D2: 1. JOSEPH, S/O.MATHAI, POTTANANIYIL, POOVATHODU BHAGAM, KEEZHAMPARA KARA, KONDOOR VILLAGE. 2. KURIAKOSE, S/O.DEVASIA, MANGALATHU HOUSE, ADIVARAM BHAGAM, THEKKEKARA MURI, POONJAR THEKKEKARA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No.323 of 2008 --------------------------- JUDGMENT The first defendant in O.S.No.190/99 on the file of the Munsiff's Court, Erattupetta is the appellant in this Regular Second Appeal, being aggrieved by the concurrent verdicts passed by the courts below against him. 2. The first respondent/plaintiff instituted O.S.No.190/99 aforesaid against the appellant and the second respondent for a decree of prohibitory injunction, inter alia, on the allegations that plaint schedule item No.1 property exclusively belongs to him under Exhibit A1 sale deed of 1989 of Sub Registry Office, Erattupetta; that the property lying on the eastern side of plaint schedule property belongs to the first defendant; that Church Land-Moonnamthodu Public Road is lying on the northern side of the first defendant's property; that there is a road having a width of 3.65 metres and length of 57 metres towards plaint RSA 323/08 2 schedule item No.1 property from the northern public road through the defendants' property; that the said road is described as plaint schedule item No.2; that the second defendant is in possession and enjoyment of some property, which is lying on the eastern side of plaint schedule item No.1 property; that plaint schedule item No.1 property and the second defendant's property originally belonged to Mathai Thomas, Thuruthiyel; that himself and the second defendant purchased the property from the said Mathai; that plaint schedule item No.2 road was constructed as per Exhibit A4 agreement dated 7.1.1988 of S.R.O., Erattupetta by his predecessor in interest; that subsequently, himself and the second defendant are using the road as of right; that there is a provision in Exhibit A4 agreement that the subsequent assignees of the property also have the right to use the road; that as per the direction of his predecessor in interest Mathai Thomas, he had surrendered 5.25 cents of RSA 323/08 3 property for the construction of a road towards the second defendant's property in continuation of item No.2 road; that the second defendant is impleaded in the party array since he is also using item No.2 road; that the first defendant is taking steps to cause obstruction to the user of plaint schedule item No.2 road in violation of the terms and conditions of Exhibit A4 registered agreement; that the first defendant unloaded some granite stones on the side of the road so as to close the road; that the first defendant has no manner of right to cause obstruction to the user of item No.2 road; that during the pendency of the suit, the first defendant and his associates constructed retaining wall using granite stones across item No.2 road near item No.1 property on the contention that he cannot use plaint schedule item No.2 road but that plaint schedule item No.2 is the only way for ingress and egress to plaint schedule item No.1 property. Hence the suit praying for a decree of RSA 323/08 4 mandatory injunction to remove the obstruction caused to plaint schedule item No.2 road and also for a decree of prohibitory injunction restraining the first defendant from making any alteration to plaint schedule item No.2 road. 3. The second defendant remained absent and ex parte. The appellant/first defendant filed written statement contending, inter alia, that the suit is not maintainable; that the allegation that the property, which is lying on the eastern side of plaint schedule item No.1 property, belongs to him is not fully correct; that 1/3 portion of plaint schedule item No.1 property is lying on the side of his property; that in between the remaining 2/3 portion of plaint schedule item No.1 property and his property, the property belonging to the second defendant is situated; that it is false to say that plaint schedule item No.2 property is a road towards plaint schedule item No.1 property from Church Land-Moonnamthodu Public Road; that in order RSA 323/08 5 to cut and remove the rubber trees, which were standing in the second defendant's property, a new road was constructed through his property on 19.3.1997 as per Exhibit B1 agreement executed between himself, the second defendant and one P.P.George; that the description of plaint schedule item No.2 as road is not correct; that there exists a kayyala having height of five feet separating plaint schedule item No.1 property and the defendants' property; that the newly cut and opened road through his property was closed as per the terms and conditions of Exhibit B1 agreement; that it is true that Exhibit A4 agreement was executed between the parties on 7.1.1988; that the said agreement was executed for transportation of rubber trees, which were standing in plaint schedule item No.1 property and other property, which originally belonged to the predecessor in interest of the plaintiff; that though a new road was constructed through his property, same was closed subsequent to RSA 323/08 6 transportation of rubber trees; that there exists no road through his property till the execution of Exhibit B1 agreement dated 19.3.1997; that the plaintiff never used plaint schedule item No.2 road as alleged; that the plaintiff and the second defendant have no manner of right over the property that belongs to him; that a new kayyala was constructed through the boundary of his property and second defendants' property as per the terms and conditions of Exhibit B1 agreement; that the suit is instituted with ulterior motive to claim right over the road, which was constructed as per Exhibit B1 agreement; that the plaintiff does not derive any right over his property as per Exhibit A4 agreement; that it is incorrect to say that the plaintiff surrendered 5.25 cents of property for construction of a road towards second defendant's property; that if at all there existed a road, over which the second defendant was having right, there is no necessity to execute Exhibit B1 agreement for RSA 323/08 7 construction of a road thorough his property; that the opening portion of the way mentioned in Exhibit A4 agreement was closed by the predecessor in interest of the plaintiff during the year 1988 itself and that the plaintiff has no cause of action against him. On the above contentions, the first defendant prayed for a dismissal of the suit. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 to 5 and DWs 1 to 3 and documentary evidence Exhibits A1 to A4, B1 and C1 to C3, decreed the suit, granting both permanent injunction as well as mandatory injunction and directing to incorporate Exhibit C1 plan as part of the decree in the suit. The appeal filed by the first defendant before the first appellate court as A.S.No.106/97 was dismissed concurring with the findings of the trial court. Hence this Regular Second Appeal assailing the concurrent verdicts of RSA 323/08 8 the courts below. 5. It is vehemently contended before me by the learned counsel for the appellant/first defendant that the right granted under Exhibit A4 was only a license for transportation of rubber trees cut and removed from the second defendant's property; that immediately after transportation of the rubber trees, the pathway was closed and that there does not exist any pathway as demarcated in Exhibit C1 plan. 6. Exhibit A4 is a registered agreement executed between the predecessor in interest of the plaintiff and the first defendant. The pathway provided for thereunder is a pathway that runs from the eastern corner of the first defendant's property towards west up to the eastern boundary of the property of the plaintiff's vendor and having a length of 57 metres and a width of 3.65 metres after forming it into a road, after cutting and removing such of the trees which come within that RSA 323/08 9 portion. It is further provided therein that in the event of sale of properties held by parties 1 and 2, namely the plaintiff's predecessor and the first defendant, the transferees will also get that right and nobody will have any right to close down the said pathway at any point of time. It is against this provision that the learned counsel advances arguments that what was given under Exhibit A4 is only a licence and the pathway had been closed after cutting and removing of rubber trees standing in the second defendant's property. 7. The very reading of Exhibit A4 shows that it is an agreement granting a permanent pathway, which even the successors of parties to Exhibit A4 agreement will have no right to close down at any point of time. Though an argument was advanced by the counsel for the appellant initially that the right conferred under Exhibit A4 has not been assigned to the plaintiff, later, he submitted that the said right stands assigned to the plaintiff by RSA 323/08 10 his vendor under Exhibit A1, who was party No.1 to Exhibit A4 agreement. On evidence, the courts below have found that the yellow marked portion in Exhibit C1 plan is the pathway formed in performance of Exhibit A4 agreement and that obstruction has been caused to the said pathway by enclosing it at the point of entry into the property of the plaintiff by the first defendant. In the circumstances, the suit was being rightly decreed by the trial court and was confirmed by the first appellate court. There is no merit in this Regular Second Appeal and no question of law and much less, any substantial question of law arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 28th July, 2008 (K.P.Balachandran, Judge) tkv