IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 SA.No. 169 of 2000(C) --------------------- AS.323/1996 of DISTRICT COURT, THRISSUR OS.1112/1991 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------- SANKARA NARAYANAN S/O.CHITTATH PARAMBIL SANKU EZHUTHACHAN, KAVANAM CHITTOOR DESOM, CHOWANNUR VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.T.A.UNNIKRISHNAN RESPONDENT/RESPONDENT/PLAINTIFF: ---------------------------------------------------------- THOMAS S/O.THEKKAKKARA IYYU KAVANAMCHITTOOR DESOM CHOWANNUR VILLAGE, TALAPPILLY TALUK. ADV. SRI.KKM.SHERIF SRI.K.K.JAYASOORIAN SRI.SANJAI PADIYATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON 19/11/2011 DELIVERED THE FOLLOWING: M.L.JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 169 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of November, 2011 JUDGMENT This second appeal is filed by the defendant Sankara Narayanan in O.S. No.1112 of 1991 on the file of Sub Court, Thrissur. Respondent herein was the plaintiff in that suit which was filed by him for permanent prohibitory injunction. 2. The case of the plaintiff in O.S. No.1112 of 1991 is briefly as follows. The plaint A and B schedule properties originally belonged to the plaintiff Thomas as per sale deed No.1935 of 1956 of Kunnamkulam Sub Registry Office. The plaintiff sold a portion of that property to one Chandran, Kuriyakutty and the defendant. The plaint A schedule property is the remaining 1 acre 20 cents of property with the plaintiff. B schedule is the property sold by the S.A. No. 169 of 2000 --: 2 :-- plaintiff to the defendant as per document No.293 of 1985 of the Kunnamkulam S.R.O. To the south of B schedule is Kunnamkulam-Wadakkanchery road. The other three sides of B schedule are surrounded by the plaint A schedule. Thus direct access from B schedule to the road is to its south. 3. When the the plaintiff had conveyed properties to Kuriakutty and Chandran he had given the right to use that portion of A schedule measuring 10 feet wide to the west and north of B schedule as passage to their properties. The defendant has no right at all to enter the said portion of the plaintiff's property left as passage to the west and north of B schedule. Defendant has commenced the construction of a latrine on the northern extremity of the plaint B schedule with a septic tank. The plaintiff had already informed the defendant that the latter would not be allowed to enter the plaint A schedule which belongs to the plaintiff. The defendant had also agreed to this. The plaintiff had informed the defendant that his act of having installed a door to the toilet is facing A schedule is wrong and the door has to be provided on the S.A. No. 169 of 2000 --: 3 :-- southern wall of the toilet. To this, the reply given by the defendant was that no such door will be provided on the southern side of the toilet and that those who use the toilet would step into B schedule through its northern door and the toilet would be kept open to the public to use the same on payment of fee. The defendant has already constructed a room on the north-east corner of the plaint B schedule providing a shutter facing the passage to its west and the plaintiff reserves his right to initiate separate proceedings. Since the defendant has no right at all to step into plaint A schedule, the defendant is to be restrained by a decree of permanent injunction from entering the plaint A schedule to the north and west of B schedule. 4. The defendant filed written statement contending that the pathway did not have a width of 10 feet as alleged by the plaintiff. He further contended that the plaintiff had no right, title or possession over the pathway situated to the north of plaint B schedule. It was further contended that the defendant had not and had no intention to trespass into the pathway on the north. It was in S.A. No. 169 of 2000 --: 4 :-- these circumstances prayed that the suit may be dismissed. 5. O.S. No.452 of 1994 is a suit filed by one Chandran as plaintiff against the same Sankaranarayanan for a decree of permanent injunction restraining him from trespassing upon the passage to the north of the property set forth as B schedule in the plaint and from constructing toilet against the provisions of the Travancore Cochin Public Health Act. O.S. No.452 of 1994 is one originally filed before the Munsiff's Court, Wadakkancherry as No.37 of 1990. That case was renumbered as O.S. No.452 of 1994 when the case was transmitted to Sub Court, Thrissur. The defendant Sankara Narayanan in that suit filed written statement and counter claim stating that the plaintiff in that suit has no right to obstruct construction of the septic tank in defendant's property and the defendant prayed for a grant of decree of permanent prohibitory injunction against the plaintiff restraining the plaintiff from causing obstruction to the construction of the septic tank in the defendant's property. 6. In the Sub Court both the above suits were jointly tried S.A. No. 169 of 2000 --: 5 :-- and evidence was recorded in O.S. No.1112 of 1991. PW1, PW2 and DW1 were examined and Exts.A1 to A5, B1 to B2 and C1 to 4 were marked. The learned Sub Judge on considering the evidence dismissed O.S. No. 452 of 1994 and counter claim. O.S. No.1112 of 1991 was decreed and the defendant was restrained by a decree of permanent injunction from entering the passage to the north of the plaint B schedule property. Against that judgment and decree in O.S. No.1112 of 1991 the defendant Sankara Narayanan filed A.S. No.323 of 1996 before the District Court, Thrissur. The defendant Sankara Narayanan in O.S. No.452 of 1994 filed A.S. No.378 of 1996 before the District Court, Thrissur against the judgment and decree in that suit. The District Court Thrissur as per common judgment in the above appeals dated 19.11.1999 dismissed both the above appeals and the cross appeal in A.S. No. 378 of 1996. Against that judgment and decree in A.S. No. 323 of 1996 the appellant/defendant filed this second appeal. 7. Heard learned counsel for the appellant and learned counsel for the respondent. S.A. No. 169 of 2000 --: 6 :-- 8. Learned counsel for the appellant submitted that both the Courts below went wrong in not considering whether the appellant has got easement right over the pathway abutting plaint B schedule. Learned counsel for the appellant further submitted that the Courts below went wrong in granting injunction restraining the appellant from entering into the common pathway on the north west of plaint B schedule property. Learned counsel for the respondent supported the judgment of the appellate Court. 9. There is no dispute that in O.S. No.1112 of 1991 the defendant purchased plaint B schedule property from the plaintiff Thomas as per Ext.B1 sale deed dated 16.2.1985. As per Ext.B1 sale deed the southern boundary of plaint B schedule property is Wadakkanchery-Kunnamkulam public road and on the other 3 boundaries of the plaint B schedule property are the properties of plaintiff Thomas. There is also no dispute that there is a pathway on the north and west of the plaint B schedule property. According to the plaintiff Thomas he has title over that pathway and he granted right to use that pathway to his assignees like Chandran as S.A. No. 169 of 2000 --: 7 :-- per Ext.A2 sale deed dated 26.9.1987 and Ext.A3 sale deed dated 10.11.1987. The existence of the disputed pathway is mentioned for the first time in Exts.A2 and A3 sale deeds. 10. The only contention of the defendant is that this pathway is a public pathway and that he, as a member of the public has the right to use the pathway. No other claim of right is raised with respect to that pathway. It has come out in evidence that many others are using the pathway to reach properties belonging to plaintiff Thomas and assignees under him. Ext.B1 shows that in 1985 there was no such pathway. Exts.A2 and A3 show that right over such pathway was conceded to the assignee Chandran only in 1987. There is nothing to show that after Ext.B1 in 1985 or Exts.A2 and A3 in 1987 the said pathway has been dedicated to the public by any process known to law. There is no evidence to show that this pathway on the north of plaint B schedule property is a public pathway or that the defendant, as a member of the public, has the right to use the pathway on the north of plaint B schedule property as claimed by him. S.A. No. 169 of 2000 --: 8 :-- 11. Considering these evidence on record, the trial Court as well as the appellate Court concurrently came to the conclusion that the defendant has no legal right to use the pathway on the north of the plaint B schedule property and that the plaintiff is entitled to a decree for permanent prohibitory injunction from entering into that pathway against the defendant. The conclusions of the two Courts below are based on proper appreciation of evidence on record and such concurrent finding cannot be disturbed in the second appeal. 12. Accordingly this second appeal is dismissed as it is without any merits. There is no order as to costs. M. L. JOSEPH FRANCIS, (JUDGE) dl/