IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 SA.No. 700 of 1995(G) --------------------- AS.15/1990 of DISTRICT COURT, THRISSUR OS.733/1986 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT(S): APPELLANTS/DEFENDANTS: ------------------------------------------------------------------- 1. SAROJINI AMMA, D/O.VADAKKOOT MULLATH LAKSHMI AMMA, PUTHAMBALLI DESOM, IRINGAPROM AMSM, CHAVAKKAD TALUK. 2. KRISHNAPRASAD, S/O. 1ST APPELLANT, ..DO..DO.... 3. KRISHNAMBIKA, D/O. 1ST APPELLANT, ...DO..DO..... 4. PRADEEP, S/O. 1ST APPELLANT, ...DO....DO..... 5. BHAGYODAYAN, S/O. 1ST APPELLANT, ...DO..DO..... BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): ---------------------------- * GOPALAN NAIR, S/O. VADAKKOOT MULLATH LAKSHMIKUTTY AMMA, PUTHAMBALLI DESOM, IRINGAPROM AMSOM, CHAVAKKAD TALUK, REPRESENTED BY MUKTHIAR AGENT, MURALEEDHARAN, S/O. MULLATH KARTHIAYANI AMMA, ....DO......DO.....DO......( D I E D). *ADDL.RESPONDENTS 2 TO 6 ARE IMPLEADED: R2. AMMALUKUTTY AMMA, W/O.LATE GOPALAN NAIR, AGED 68 YEARS, RESIDING AT MULLATH HOUSE, PUTHENPALLY, NEAR MANNIYOOR TEMPLE. GURUVAYOOR. Kss ..2/- ....2...... S.A.NO.700/1995 R3. PRASANNA, D/O. AMMALUKUTTY AMMA, AGED 44 YEARS, RESIDING AT MULLATH HOUSE, PUTHENPALLY, NEAR MAMMIYOOR TEMPLE, GURUVAYOOR. R4. MOHANAN, S/O.LATE GOPALAN NAIR, AGED 40 YEARS, RESIDING ....DO...... R5. SARALA, D/O.AMMALUKUTTY AMMA, AGED 39 YEARS, RESIDING ...DO...DO..... R6. BALA, D/O. AMMALUKUTTY AMMA, AGED 32 YEARS, RESIDING ....DO..... (*ADDL. RESPONDENTS 2, 3, 4, 5, 6 ARE IMPLEADED AS THE LRS OR THE DECEASED SOLE RESPONDENT AS PER ORDER DTD. 19/01/98 IN CMP 1476/97) BY ADDL.R2 TO R6 BY ADVS.MR.M.RAJAGOPALAN, MR.RAJITH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.M. JOSEPH, J. ```````````````````````````````````````````````````` S.A. No. 700 OF 1995 G ```````````````````````````````````````````````````` Dated this the 18th day of June, 2009 J U D G M E N T The appellants are the defendants in the suit filed for permanent and mandatory injunction. The permanent injunction was to restrain the appellants from causing obstructions to the respondent in using the B schedule way and to restrain them from reducing the width of the way. The mandatory injunction was for restoring the way into its original position by removing the granite bolders in the slope area and to fix the laterate stones. According to the respondent, there is a padivazhi having a width of 10 feet for reaching the tharavadu house situated in A Schedule property. It is stated to be an old one starting from the western boundary of A schedule property which is the C schedule property of the partition deed of 1973. It is the further case of the respondent that it starts from the western boundary of A Schedule property and goes through the C Schedule property of Dhakshayani Amma and then through the F Schedule property set apart to the defendants in the partition deed. It first goes straight to west and then to the SA.700/95 : 2 : southern side and reaches the Guruvayur - Mammiyoor road. The padivazhi is described in the B schedule property. The basis of the claim was the statements in the partition deed that padivazhi will be maintained and the thavazhi members are entitled to use the same. It is the further case of the respondent that the appellants are on inimical terms and they are causing obstructions and laterate stones were fixed in the slope and the defendants unloaded granite bolders near the B schedule way. The appellants filed written statement admitting that there is a way but they disputed the width of the way and contended that the way is having a width of 3 feet. It is also stated that the respondent is already entitled to use that way for ingress and egress to A schedule property. It is stated that there is no mention about the width of the way as 10 feet in the partition deed. It is also stated that they constructed concrete pillars so as to protect their property. There is also reference to the decree in OS.87/83 and it is contended that as per the judgment the appellants have made a slope in the way which is situated on the eastern side of the property. The trial court framed proper issues. PW1 is none other SA.700/95 : 3 : than the mukthiar agent and also son in law of the plaintiff. Ext.A1 is the partition deed dated 13.6.1973. Ext.C1 is the Commissioner's report. Ext.C2 is the plan submitted by the Commissioner. The second appellant was examined as DW1 and another person was examined as DW2. On a consideration of the evidence, the trial court came into the conclusion that the way had a width of 9 feet and decreed the suit. The first appellate court has confirmed the same and the second appeal is preferred. 2. I heard learned counsel for the appellants and learned counsel for the respondent. Learned counsel for the appellants Sri.K.M.Sathianatha Menon would submit that this is a case where both the courts were erred grievously in decreeing the suit. It is pointed out that the suit is one for injunction. Apart from the oral testimony of the Power of Attorney holder, who married the daughter of the plaintiff only a few years back and who cannot be expected to speak about the width of the way and the commission report which he would fault on various grounds, there is no other evidence, he contends. He submits that this is a perverse finding. He would submit that the commission report should not have been SA.700/95 : 4 : relied on. That apart, he also points out that the prior documents under which the plaintiff claimed were not produced by the plaintiff. He has filed an application for production of two documents. Those documents are partition deed of 1917 and yet another partition deed of 1941. 3. Per contra, learned counsel for the respondent would submit that this is a case where the appellants having admitted the existence of a way and the only question was what is the width of the way. Both the courts below have concurrently found that the way is having a width of 9 feet and it was interfered with as complained of by the plaintiff, it is contended. He also points out that the documents of the years 1917 and 1941 may not have any bearing at all on the issue. 4. A second appeal is maintainable only when there is a substantial question of law. No doubt, finding of facts can also give rise to substantial questions of law. If there is no evidence for a finding or if the finding is perverse in the sense that no court would come possibly to such finding certainly such a finding can give rise to a substantial question of law. It cannot also be SA.700/95 : 5 : disputed that if an important piece of evidence is ignored, it may give rise to substantial question of law. 5. The questions of law purported to be raised are as follows: a. Is it proper for a court to decree the suit for permanent and mandatory injunction for '9' feet width way. On the pleadings of easement by prescription leasing up on a document in which it is specifically mentioned that, the right granted is only “ വഴ നടപന ”? b. Whether it is proper and legal for the courts below to believe the evidence of a stranger (son-in-law) to the document and suppressing the basic documents to Ext.A1 for assessing the width of the pathway? c. Is it not the duty of the courts to know what is the right prescribed in basic document and is it not the burden of plaintiff to substantiate his contentions? d. Whether the courts below are right in decreeing the suit as a suit leasing as a suit on the basis of easement by prescription especially plaintiff relying a document, is it a right claimed by easement by grant? e. Whether the courts below are correct in relying the cause of action made by the plaintiff SA.700/95 : 6 : in the plaint, that there evidence on record to show that the alteration of the way is leasing on a decree in OS.87/1983? f. Is it not legal and proper on the part of the courts below to find, is it not the duty of the plaintiff to substantiate his contention and prove the width of the pathway leasing on basic documents? g. Whether the court below is right in rejecting IA.1686/90 for the collection of the correct features of the plaint schedule property, when there is substantial evidence and contentions raised by the defendants in their objections to the commissioner's report and the petition was filed in the court of First Appeal? h. Is it not wrong on the part of First Appellate court to reject IA.1686/90 for the collection of detailed facts of the case, especially when there is no bar for issuance of a second commissioner? “ 6. Here I am concerned with only one question and that is what is the width of the pathway. It cannot admit of any doubt that if there is otherwise evidence which is acceptable, it cannot be challenged in the limited jurisdiction under section 100 of the C.P.C. As to what is the width of the pathway is a pure question SA.700/95 : 7 : of fact. Then, the question arises as to whether there is any evidence at all to support the findings of the court below. This is a case that Advocate Commissioner has filed a report and plan. In the report, he has reported that there is a way up to 50 feet from plaint A schedule property towards the west having width of 9 feet. Thereafter, it is stated that till the portion adjoining the appellants' property, the width is 3 to 4 feet. It continues to the point where it turns to the south. I do not think that there is much dispute that the property on the east of the way also belong to the appellants. No doubt, PW1 is the son in law of the respondent. The marriage took place prior to the suit. Of course, the learned counsel for the respondents contends that actually the Power of Attorney holder is a relative and his knowledge need not be confined to the knowledge which is obtained after the date of marriage. Whatever that be, he has spoken that the width being 10 feet. It is also probabilised by the width of the way up to 50 feet from the western portion of plaint A schedule property. Two circumstances also cannot be ignored and they are the finding in the Commission report that there is no cultivation for about 10 feet of what would SA.700/95 : 8 : be the way. It was seen ploughed. The ploughing is done in December. The ploughing is done normally in July. The court below has found that ploughing in December is not in keeping with normal agricultural operations. This again goes to probabilise the case of the respondent that attempt was done to annex the way to the property of the appellants. No doubt, learned counsel for the appellants would submit that in view of the objection to the Commission report, it should have been remanded back and no reliance can be placed on the Commission report as such and that there was no surveyor to assist the Commissioner and it is only a sketch. He points out that the appellants have only 27 cents and they will lose a huge extent if the decree is supported. He submits that the decree passed on the basis of the Commission report may be inexecutable. I do not think these complaints of the appellants are with basis. The existence of the way is not disputed. It is contended that it has a width of 2½ feet. Under the partition there is a grant and a right of way over the appellants' property. It cannot be a matter of any dispute. The fact that the width of the way is not mentioned in the document does not mean that SA.700/95 : 9 : evidence cannot be adduced to show actual width. The version of the respondent stands accepted by both courts, namely the pathway has width of 9 feet. It is to be noted also that the documents which have been tendered by way of application under Order 41 Rule 27 do not appear to support the appellants. I cannot totally ignore the fact that the appellants did not produce before the trial court or before the first appellate court. 7. I cannot also ignore the fact that the deposition of DW2, in fact, in a sense, supports the case of the respondent. He would say that if trees are not planted on 10 feet it could be an indication of there be a way having such width. Report of the Commissioner would show that there are no trees planted for a distance of 10 feet. I think that having regard to the materials on record, the appellants are failed to make out a case for interference. Accordingly, the appeal is liable to be dismissed. It is dismissed. The parties shall bear their respective costs. Sd/- (K.M.JOSEPH, JUDGE) aks