IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH SEPTEMBER 2007 / 27TH BHADRA 1929 SA.No. 21 of 1994(C) -------------------- (AGAINST THE JUDGMENT AND DECREE IN AS.101/1990 DATED 16/08/93 ON THE FILES OF THE SUB COURT, PAYYANNUR AGAINST THE JUDGMENT AND DECREE IN OS.142/1988 DATED 29/06/1990 ON THE FILE OF THE MUNSIFF'S COURT OF THALIPARAMBA) .................... APPELLANTS:RESPONDENTS:DEFENDANTS: ------------------------------------------------------------------- 1. DAMODARAN, BANK EMPLOYEE, RESIDING IN “DEEPALAYAM”, P.O.ALAKODE, THADIKKADAVU AMSOM, ARANGAM DESOM. 2. K.R.GOPALAKRISHNAN NAIR, TEACHER, RESIDING AT THADIKADAVU AMSOM, ARANGAM DESOM, P.O.ALAKODE. 3. VIDYADARA PANICKER, RESIDING AT “AMBADIYIL”, THADIKADAVU AMSOM, ARANGAM DESOM. 4. K.P.MOIDU, PRESIDENT, ALAKODE PANCHAYAT, THADIKADAVU AMSOM, ARANGAM DESOM. 5. P.K.BALAKRISHNAN NAIR, VICE PRESIDENT, ALAKODE PANCHAYAT, ALAKODE AMSOM, THIMIRI DESOM, P.O. THIMIRI. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.B.JAYAPARAKASH RESPONDENTS: APPELLANT:PLAINTIFF: ------------------------------------------------------------- SMT. A.R. THANKAMMA, D/O.RAMAN (CRAFT TEACHER), RESIDING AT “ALAMBALLIL HOUSE”, P.O.ALAKODE.(D I E D)- LR'S IMPLEADED: *ADDL.R2: KUNHAMMINI @ CHANDRAMATHI, D/O.BALAN, ALAMBAKULI, P.O. ALAKODE, TALIPARAMBA. (*ADDL.2ND RESPONDENT IMPLEADED AS THE LRS OF DECEASED SOLE RESPONDENT AS PER ORDER DTD. 30/05/07 IN CMP.849/01) BY ADV. SRI.GEORGE THOMAS for Addl.R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.39/1994 IN S.A.NO.21/1994 DISMISSED 18/09/2007 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO. 21 OF 1994 ------------------------------------------ Dated 18th September 2007 J U D G M E N T Defendants in O.S.142 of 1988 on the file of Munsiff court, Taliparamba are appellants. Plaintiff is the respondent. Plaint A schedule property admittedly belongs to the respondent under Ext.A1 sale deed dated 2/12/1965. Respondent instituted the suit contending that appellants with the consent of plaintiff used to go towards west through the northern boundary of their property and Alakkodu-Manakkadavu road is only 25 meters to the east of plaint A schedule property and plaint B schedule property is a portion of plaint A schedule property and appellants wanted to construct a road through plaint B schedule property and sought consent of respondent to form a road and no consent was granted. Contending that appellants attempted to construct a road by force, suit was filed seeking a decree for permanent prohibitory injunction restraining appellants from trespassing into the plaint B schedule property and SA 21/94 2 forming a road through plaint B schedule property or interfering with peaceful possession and enjoyment of the property. Appellants in their written statement contended that a road has been in existence for the last 25 years through which vehicles used to be taken towards west and appellants have been using that road along with the general public and therefore respondent is not entitled to the decree sought for. Learned Munsiff appointed a Commissioner and Commissioner submitted Exts.C1 report and C1(a) plan. Ext.C1(a) plan shows that Alakkode-Manakkadavu road lies north-south towards the east of plaint schedule property and a road starts from Alakkode-Manakkadavu road which runs towards west and reaches the plaint A schedule property and plaint B schedule property is portion of plaint A schedule property in continuation of that road if the road extended further towards the west and there is a stream on the western boundary of plaint A schedule property and towards west in continuation of plaint B schedule property there was a newly formed road. Commissioner also reported that in the B schedule property there is one electric post and granite rock indicating that there was no road. Learned Munsiff on SA 21/94 3 the evidence found that plaint B schedule property is a part of panchayat road as evidenced by Ext.X1 road register maintained by the Panchayat and Alakkode- Manakkadavu panchayat road was formed after obtaining surrender, evidenced by Ext.X2 series of surrender forms and therefore respondent is not entitled to a decree sought for in respect of plaint B schedule property. Suit was dismissed. Respondent challenged the decree and judgment before Sub court, Payyannur in A.S.101 of 1990. Learned Sub Judge on re-appreciation of evidence found that Ext.X1 only shows that entry with regard to panchayat road was made on 11/5/1988 after the institution of the suit and Ext.X2 series do not establish that respondent surrendered any portion of his property and if a road was in existence as claimed by appellants there was no necessity to give consent in May 1988 and therefore held that case of appellants that there was an existing road for the last 25 years is unsustainable. Learned Sub Judge also found that appellants have no right to construct a road in the plaint B schedule property without the consent or permission of respondent and appellants are not entitled to cause any obstruction to the peaceful SA 21/94 4 enjoyment of plaint A schedule property by respondent and therefore granted a decree as sought for. It is challenged in the second appeal. 2. Second appeal was admitted formulating following substantial questions of law. 1) Whether on the facts and circumstances of the case plaintiff is entitled to a decree for injunction under Section 41 (g) of Specific Relief Act. 2) Whether suit is maintainable when plaint B schedule property is used as a road by general public and suit is not instituted seeking permission as provided under Rule 8 of Order I of Code of Civil Procedure. 3) Whether first appellate Court was justified in granting a decree when appellants have been using the road as members of general public. 3. Learned counsel appearing for appellants and respondent were heard. 4. Arguments of learned counsel appearing for appellants is that First Appellate Court was not SA 21/94 5 justified in interfering with the decree of the trial court when Ext.X1 establish that plaint B schedule property is part of panchayat road. It was also agreed that suit was dismissed by the trial court accepting evidence of Dws.2 and 3 which were not considered by First Appellate court. It was further argued that in the plaint itself it is admitted that appellants are using plaint B schedule property to pass towards west with her consent and even if there is no road, appellants are entitled to pass through plaint B schedule property and first appellate court was not justified in granting a decree restraining them from passing through plaint B schedule property, especially when no such relief was sought for in the plaint. 5. Learned counsel appearing for respondent argued that if road was in existence as claimed by appellants, there was no necessity for a consent or surrender evidenced by Ext.X2 series after institution of suit and entry in Ext.X1 only shows that a road was formed subsequent to filing of suit and there is no case that respondent either surrendered any portion of plaint A schedule property or any portion of plaint A schedule property was acquired for forming the road SA 21/94 6 and so after filing of the suit, no road could be formed and First Appellate Court rightly appreciated the evidence and found that no road is in existence through plaint B schedule property. It was also pointed out that from the existence of an electric post, granite rock in the plaint B schedule property noted by the Commissioner a road could not have been in existence and as respondent did not surrender any portion of plaint A schedule property to form a road, no road could be formed without an acquisition and as there is no case of acquisition appellants cannot construct a road through plaint B schedule property and decree is sustainable. 6. Though it was contended that a road was in existence for the last 25 years, evidence adduced on the side of appellants themselves establish that no road was in existence prior to institution of the suit through plaint B schedule property. Admittedly, Alakkode-Manakkadavu road lies further to east of plaint schedule property and a road which starts from that road runs towards west up to the plaint A schedule property. But there is no evidence to prove that that road is running further towards west. As SA 21/94 7 rightly found by First Appellate court existence of electric post, granite rock and a stream on the west and absence of extension of that road towards further west, establish that there was no such road through plaint B schedule property or towards its west as claimed by appellants. If there was such a road, then Ext.X2 series of surrender forms would not have been executed in May 1988 and that too for the purpose of forming a road. It proves that till a road could be formed making use of the surrender of land evidenced by Ext.X2 series of surrender forms, no road could have been formed. It is in such circumstances, First Appellate court found that no road was in existence through plaint B schedule property before the institution of the suit. That finding of fact is perfectly in accordance with the evidence and warrants no interference. 7. Then the question is whether appellants have a right to form a road. Unless respondent gives consent to form a road or surrenders a portion of her property for forming a road or a portion of plaint A schedule property is acquired for the purpose of forming road, no road could be constructed through SA 21/94 8 plaint B schedule property. Appellants have no case that there was any surrender or consent by respondent or any acquisition to enable appellants to form a road through plaint B schedule property. As it was contended that a road has been formed by panchayat subsequent to institution of suit, First Appellate court was justified in granting a decree restraining appellants from forming a road through plaint B schedule property as they have no right to form a road through plaint B schedule property. 8. Then the question is whether respondent is entitled to decree granted by First Appellate court either in view of Section 41 (g) of Specific Relief Act or for the reason that respondent has consented appellants to pass through plaint B schedule property. 9. Section 41 of Specific Relief Act provides that injunction cannot be granted if any of the conditions provided under sub sections(a) to (j) apply. Under clause (g) injunction cannot be granted to prevent a continuing breach in which the plaintiff has acquiesced. Question is whether respondent has acquiesced either the forming of road or making use to any portion of plaint A schedule property as a road. SA 21/94 9 Evidence establish that no road was in existence through plaint B schedule property prior to the institution of suit. Therefore no question of acquiescence as provided under clause (g) of Section 41 arises. Argument of learned counsel appearing for appellants is that the decree granted by First Appellate court even restrains appellants from passing through plaint B schedule property and as appellants have been using that way and it was not prevented by respondent till the date of filing of the suit, there is acquiescence and therefore decree to that extent is not sustainable. 10. Paragraph 3 of plaint shows that respondent specifically pleaded that appellants 1 to 3 are owners of the property to the west of plaint A schedule property and they got number of entries to the house and compound to go to west and they pass through plaint A schedule property between the house and the northern boundary with the consent of respondent. There is no case in the plaint that the said consent was withdrawn at any point of time. A reading of the plaint shows that grievance of the respondent was only against forming a road through plaint B schedule property as SA 21/94 10 according to respondent, if a road is formed it would cause difficulty and impediment to residential house of respondent which is touching plaint B schedule property. In the plaint respondent did not seek a decree restraining appellants from passing through plaint B schedule property to reach eastern Alakkode- Manakkadavu road. In such circumstances, First Appellate court was not justified in granting a decree restraining appellants from passing through plaint B schedule property. To that extent the decree granted is to be modified. In all other respects decree granted by First Appellate court is perfectly correct. 11. Second appeal is allowed in part. Decree granted by Sub court, Payyannur in A.S.101 of 1990 is confirmed with the modification that the decree will not affect the rights of the defendants/appellants to pass through plaint B schedule property as admitted by in para 3 of the plaint. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 21/94 11 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.21 OF 1994 18th September 2007 ============================