IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 SA.No. 367 of 1995() -------------------- OS.840/1983 of ADDL.MUNSIFF COURT,THRISSUR AS.241/1990 of DISTRICT COURT, THRISSUR .................... APPELLANT/APPELLANT/ PLAINTIFF: --------------------------------------- LEELA @ SUSEELA, S/O.THENAYANGERI MUKAMI AMMA, NADATHARA VILLAGE DESOM, THRISSUR TALUK BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.PAUL SRI.T.A.UNNIKRISHNAN RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------- 1. RADHAKRISHNAN, PENSIONER, S/O.PUTHENMADATHIL THENAYANJERI KUNJUKUTTY AMMA, NADATHARA VILLAGE, DESOM, THRISSUR TALUK 2. NARAYANAN, B/O.1ST RESPONDENT, DO. DO. BY ADV. T.P.KELU NAMBIAR (SR.) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 9/4/2008, THE COURT ON ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO. 367 OF 1995 ------------------------------------------ Dated 9th April 2008 J U D G M E N T Plaintiff in O.S.840/1983 on the file of Munsiff court, Thrissur is the appellant. Defendants are the respondents. Suit was for permanent prohibitory injunction restraining respondents from constructing any pathway through the plaint schedule property. Plaint schedule properties are two items. Item No.1 is having an extent of 72 cents in R.S.No.263/2 and item No.2 is 15 cents in R.S.No.264/3. According to the appellant item No.1 jointly belongs to the appellant and her brothers under Ext.A1 sale deed dated 25/1/1966 and item No.2 belonged to Aravindakshan, her brother who obtained it under Ext.A2 dated 29/11/1976. According to appellant she has been in possession of the properties on behalf of Aravindakshan and all other co-owners. It was contended that though there was a way on the eastern side of the item No.1 of the plaint schedule property, it does not exist and respondents destroyed the fence SA 367/95 2 on the north eastern corner of the plaint schedule property and attempted to cut a pathway through plaint schedule property and so they are to be restrained by a decree for injunction. Case of the appellant was that both item Nos.1 and 2 are being enjoyed as compact plot. 2. Respondents resisted the suit contending that a public way through the puramboke land exists through the east of item No.1 and west of item No.2 of the plaint schedule properties and the existence of that way was suppressed by the appellant and appellant is not entitled claim any right or possession, over the way and she is not entitled to the decree for injunction. 3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A5, B1 to B4, C1 and C2 and X1 found that the eastern boundary of item No.1 of plaint schedule properties as shown in Ext.A1 is a puramboke way and Ext.C2 report and survey plan establish that a way existed through the eastern boundary of the item No.1 and to the wet of item No.2 of the plaint schedule properties which joints the northern public road. It was also found that appellant instituted the suit suppressing the existence of the way and appellant cannot claim a decree in respect of that way and dismissed the suit. SA 367/95 3 4. Appellant challenged judgment before District court, Thrissur in A.S.241/1990. Learned District Judge on re-appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in second appeal. 5. Appeal was admitted formulating following substantial questions of law. 1) Whether plaintiff can be denied the relief of injunction restraining trespass into the property and committing acts of waste solely because the defendants claimed existence of a pathway on the boundary of the property. 2) Whether the right of a person for the peaceful enjoyment of the property including fencing thereof can be interfered under the colour of exercising alleged right of way on the boundary of that property. 6. Learned counsel appearing for appellant and respondents were heard. 7. Argument of the learned counsel appearing for appellant is that though Ext.A1 shows eastern boundary of item No.1 of the plaint schedule property as a way, that way was not being used for several years prior to the institution of the suit and when the suit was instituted, SA 367/95 4 the way was not in existence and the entire item No.1 and 2 of the plaint schedule properties are enjoyed as a common property and because of the survey records showing puramboke land in between the two properties, courts below were not justified in refusing to grant a decree for injunction. It was argued that the Commissioner in Ext.C2 report did not find any demarcating boundary separating the disputed portion of the property and evidence of PW1 that the entire property was being enjoyed as one plot and nobody was using any portion of the property as a way should have been upheld and a decree should have been granted. Learned counsel appearing for respondents pointed out that item No.1 of the property was identified by the Commissioner in the plan appended to Ext.C2 report excluding the eastern puramboke land which is the way and under Ext.A1 appellant or other co-owners cannot claim any right or possession of the puramboke land, which lies to the east of item No.1 and west of item No.2 of the plaint schedule properties and the way extents upto the northern public road and suppressing the existence of the way, appellant instituted the suit and when the existence of the way was proved courts below rightly refused to grant the discretionary relief of injunction and appeal is SA 367/95 5 only to be dismissed. 8. Under Ext.A1 appellant can claim only right and title to 72 cents in R.S.No.263/2. Ext.C2 report with plan appended establish that eastern boundary of item No.1 which even under Ext.A1 is a way, is the western boundary of the puramboke land. Appellant cannot claim any right to any portion of the puramboke land. Similarly, Ext.C2 report establish that puramboke way extents further towards south and to the west of item No.2 of plaint schedule property and that way connects the northern public road. It is suppressing the existence of the way, appellant instituted the suit contending that respondents are attempting to cut a pathway north-south of plaint schedule property. When the disputed portion of the property does not form part of Ext.A1 sale deed, appellant is not entitled to the decree for injunction in respect of that property. Courts below rightly found that appellant is not entitled to a decree for injunction. Though substantial question of law was formulated, based on the eastern boundary of item No.1 of plaint schedule property appellant cannot dispute the way. The eastern boundary of item No.1 is the western boundary of the eastern puramboke land. Hence under Ext.A1 appellant SA 367/95 6 cannot claim any right to the puramboke land. Learned counsel appearing for appellant then argued that courts below should not have granted cost. Cost is the discretion of the court. It cannot be said that discretion was wrongly exercised by the courts below. Therefore, no interference is called for. There is no merit in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 367/95 7 ============================= M.SASIDHARAN NAMBIAR,J. ORDER S.A.NO.367 OF 1995 9th April 2008 ============================ SA 367/95 8