IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 SA.No. 690 of 1994(F) --------------------- AS.72/1990 of SUB COURT, OTTAPPALAM OS.47/1987 of MUNSIFF'S COURT, OTTAPPALAM .................... APPELLANTS:RESPONDENTS:PLAINTIFFS: ----------------------------------------------------------------- *1. SREEKUMARAN NAIR, S/O.KARUKAPALLIL JANAKI AMMA, ELAMBULASSERI AMSOM, DESOM, OTTAPPALAM TALUK. ( D I E D) – LR RECORDED. 2. SAVITHRI AMMA, W/O.SREEKUMARAN NAIR, ....DO...DO..... (LR OF A1) **SUPPL.A3 TO A5 (LR'S OF A1) IMPLEADED: A3. ARUNKUMAR, S/O.LATE SREEKUMARAN NAIR, ELAMBULASSERI AMSOM, OTTAPALAM TALUK. A4. UNNIKRISHNAN, S/O...DO...R/AT ..DO..... A5. THULASI, D/O........DO...... R/AT ...DO...... **ADDL.A3 TO A5 IMPLEADED AND SECOND APPELLANT RECORDED AS LR OF DECEASED FIRST APPELLANT VIDE ORDER DTD. 20/11/07 IN I.A.2039/07. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SRI.P.RAMACHANDRAN ) SRI.M.GOPIKRISHNAN NAMBIAR ) A2 TO A5 SMT.PRABHA R.MENON ) Kss ..2/- ...2.... S.A.NO.690/1994 RESPONDENTS: APPELLANTS:LRS OF DEFENDANT: ------------------------------------------------------------------------------ 1. THRESIAMMA, W/O.LATE KALLEPARAMBIL JOSEPH, ELAMBULASSERI AMSOM, DESOM, OTTAPPALAM TALUK. 2. THOMAS, S/O.LATE KALLEPARAMBIL JOSEPH, ...DO...DO..... 3. SHAJI, S/O.LATE KALLEPARAMBIL JOSEPH, ....DO..DO.... 4. LAILAMMA, D/O.LATE KALLEPARAMBIL JOSEPH, ...DO..DO.... 5. LAISAMMA, D/O.LATE KALLEPARAMBIL JOSEPH, ...DO..DO.... BY ADV. SMT.S.JAYASREE BY ADV. SRI.P.N.RAVINDRAN ) SMT.PREETHY KARUNAKARAN) SMT.M.M.DEEPA ) SRI.JAYKAR.K.S. ) R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.1473/1994 IN S.A.NO.690/1994 DISMISSED 14/02/2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE. /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 690 OF 1994 ............................................ DATED THIS THE 14th DAY OF FEBRUARY, 2008 JUDGMENT Appellants 1 and 2 are the plaintiffs and respondents, the legal heirs of deceased defendant. On the death of first appellant, his legal heirs, in addition to second appellant, were impleaded as additional appellants 3 to 5. They instituted the suit originally for permanent prohibitory injunction. Later it was amended for mandatory injunction. Plaint A schedule property belongs to first appellant under Ext.A1 and plaint B schedule property under Ext.A2. Plaint A schedule property was obtained under Ext.A1 kanam assignment deed dated 17.10.1978. Plaint B schedule property was alloted to the share of second appellant as item No.3 of Ext.A2 partition deed. Under Ext.A2 partition deed, the property which lies to the south of plaint A schedule property and which later came into possession of respondents, was alloted as item No.1 to Saraswati Amma. It was later purchased by deceased defendant under Ext.B1. Appellants contended that under Ext.A2 partition deed, a way was provided to the east of the property alloted to Saraswati Amma and it is the way available to plaint B schedule property and deceased defendant SA 690/1994 2 has no right to cause any obstruction to that way. A decree for permanent prohibitory injunction was sought restraining defendant from causing any obstruction to that way. Subsequently plaint was got amended contending that the way was obstructed by defendant and therefore appellants are entitled to a decree for mandatory injunction to cause removal of the obstruction. 2. Defendant resisted the suit contending that under Ext.B1 sale deed, he purchased 50 cents of the property comprised in Survey No.161/1 and there is no pathway on the eastern side of the said 50 cents and the said 50 cents has been in the possession of defendant as a single plot enclosed by a fence and appellant has no right of way through that property and therefore he is not entitled to the decree sought for. It was also contended that appellant is bound to take out a commission to measure the property and find out the existence of a way. Subsequent to the amendment of the plaint, an additional written statement was filed contending that appellant is not entitled to a decree for mandatory injunction as defendant did not cause any obstruction to the way which did not exist. 3. Learned Munsiff, on the evidence of PWs 1 & 2, DW1, Exts.A1 and A2, B1 and C1 and C2, granted a decree holding that Ext.A2 partition deed and Ext.B1 sale deed establish SA 690/1994 3 existence of way to the east of the property alloted to the share of Saraswathy Amma, the assignor of the defendant and purchased by the defendant under Ext.B1. A mandatory injunction was granted to restore the way through the red- coloured portion marked in Ext.C2 plan. The legal heirs of defendant challenged the judgment before Sub Court, Ottapalam in A.S.72 of 1990. Learned Sub Judge, on reappreciation of evidence, found that Ext.C1 report establish that at the time of his inspection, there was no evidence to show existence of a pathway as claimed by appellants. It was also found that rubber trees aged 6 to 7 years were found in the portion of the property where appellants claim that a way exists. Relying on the report of Ext.C1, it was found that there was no indication in the disputed portion to show that it is being used as a way. Appeal was allowed and the suit was dismissed. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1)In view of the express recital in Ext.A2 about existence of a pathway, whether defendant, who is an assignee from the allotee under Ext.A2 is entitled to dispute the existence of the pathway. SA 690/1994 4 2)In the light of the eastern boundary shown in Ext.A2 and B1, whether first appellate court was justified in finding that there is no existing way. 3)Whether first appellate court was justified in interfering with the decree granted by the trial court when trial court had the advantage of noting the demeanour of the witnesses and the trial court relied on the evidence of witnesses. 5. Learned counsel appearing for appellants and respondents were heard. The right and title of appellants to plaint A and B schedule properties is not disputed. Under Ext.A1, appellant obtained plaint A schedule property in 1978. Ext.A2 partition deed was entered into between second appellant and assignor of defendant in 1981 and another. Under Ext.A2 partition deed, item No.1 was alloted to Saraswati Amma, the assignor of defendant and item No.3 therein was alloted to second appellant. The description of the eastern boundary of item No.1 of Ext.A2 shows that item 1 is the property to west of the property set apart for the way. Therefore respondents being the legal heirs of the defendant or deceased defendant being the assignee of one of the sharers under Ext.A2, cannot dispute that a portion of the property was left for the purpose of providing a way and it was to the east of item No.1 of the property covered under Ext.A2. Ext.B1 shows that it is that property which was SA 690/1994 5 purchased by defendant. The eastern boundary of Ext.A2 also shows that the property purchased by defendant is the 50 cents which lies to the west of the way which was set apart under Ext.A2. 6. The suit is not for declaration of a right of way. The suit is only for a permanent prohibitory injunction, contending that a way exists and defendant is not entitled to cause any obstruction to the way. True, plaint was subsequently amended, contending that an obstruction was caused and therefore the way is to be restored. Still declaration of right was not sought. If appellants did not succeed in establishing the existence of a way, they are not entitled to the decree sought for in the nature of the suit. A decree for providing a way as provided under Ext.A2 could be granted, only if a proper suit is instituted for declaring the right of way and if such way is not existing for a further prayer for providing such a way. As the suit is only for injunction, that question is not relevant. 7. Though Ext.A2 and B1 establish that the eastern boundary of the property purchased by defendant, which was the property alloted to Saraswati Amma, assignor under Ext.A2, is the property which was set apart for a way. It is the specific case of defendant in the written statement that when the suit was instituted, no such way exists. Trial court granted the SA 690/1994 6 decree mainly based on the eastern boundary shown in Ext.A2 and B1. As rightly found by first appellate court, when Commissioner inspected the property for the purpose of submitting Ext.C1 report, Commissioner could not find existence of a way as claimed by appellant. Along with the plaint, appellant produced a sketch which was considered by first appellate court, wherein the way is marked as BCD. Ext.C1(a) sketch prepared by Commissioner does not show the existence of such a way. On the other hand, Ext.C1 report with Ext.C2 sketch shows the existence of a way which lies to the east of plaint A schedule property and runs towards the south and reaches the property of Chacko through the south of the property of Maniyan. As per the sketch appended to the plaint property of Chacko and Maniyan lie to the east and north of the way BC shown therein. Ext.C1 report with Ext.C2 sketch show that if there is a way as claimed by appellant based on Ext.A2, it is to be through the red marked portion in Ext.C2 where Commissioner could find rubber trees aged more than six years. If that be so, finding of first appellate court that there is no evidence to establish existence of a way as claimed by appellant is correct. If a way was existing, as claimed by appellant, Commissioner should have found the existence of the way which connects the disputed way to at least plaint A schedule property SA 690/1994 7 which lies to the north of the property of defendant and Maniyan. Commissioner could not find any trace of such a way to substantiate existence of the way asserted by appellants. In the light of this evidence, it cannot be said that finding of fact by first appellate court that there does not exist a way as claimed by appellants is not in accordance with the evidence on record. True, even if no way as such could be found out by the Commissioner at the time of his inspection, the right provided under Ext.A2 cannot be denied. But so long as the suit is only for injunction, it is not necessary to consider the question in this appeal. Finding of first appellate court that no way exists at the time of institution of the suit and appellants are not entitled to the decree for mandatory or permanent prohibitory injunction sought for is perfectly correct. It is made clear that in spite of the dismissal of the suit, appellants are at liberty to institute a proper suit for declaration and restoration of the way as provided under Ext.A2 in accordance with law. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-