IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 FAO.No. 183 of 2008() ------------------------------ AS.23/2005 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.291/2002 of PRL.MUNSIFF'S COURT.,TRIVANDRUM .................... APPELLANT/RESPONDENT/DEFENDANT ---------------------------------------------------------- SARASWATHY.K., AGED 43 YEARS, W/O.BALAKRISHNAN, RESIDING AT 'REVATHY', T.C.3/1142(1), S.R.NAGAR, PATTOM.P.O., KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.V.AJAKUMAR SRI.T.M.CHANDRAN RESPONDENT/PLAINTIFF -------------------------------------- PRASANNA, AGED 48 YEARS, 'RAJADHANI', T.C.3/1144(1), S.R.NAGAR, KESAVADASAPURAM, PATTOM.P.O., THIRUVANANTHAPURAM. BY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/12/2008, ALONG WITH FAO NO. 184 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== FAO Nos.183 & 184 OF 2008 ===================== Dated this the 2nd day of December 2008 JUDGMENT FAO No.183 of 2008 is preferred against the judgment of the II Addl.District Court, Thiruvananthapuram in A.S.No.23 of 2005 and FAO No.184 of 2005 is preferred against the judgment of the same court in A.S.No.13 of 2005. In turn these appeals were preferred against the judgment and decree in O.S.Nos.291 & 953/2002 of the Prl.Munsiff's Court, Thiruvananthapuram. O.S.No.953 of 2002 was a suit for declaration and prohibitory injunction which a further relief of mandatory injunction was incorporated. The other suit was also for a permanent prohibitory injunction and for mandatory injunction. The dispute is with respect to the width of a pathway. 2. The substantial questions of law formulated in the memorandum of appeals are as follows: (A)Whether the lower court is justified in remanding the case for fresh trial even after removing its the finding that during the pendency of the suit the appellant has reduced FAOs 183 & 184/2008 -:2:- the width of the pathway? Whether the case can be remanded for enquiry of a fact which the parties have never raised or asserted in trial? (B) Is it not the burden of the plaintiff to prove her title and possession over the alleged pathway as claimed by her when she seeks for a decree of declaration over a particular property. Can the burden be reversed at any circumstances? (C) Whether the court can order for a remand without finding any specific valuable reason for retrial of the case? In such cases, whether the remand can be ordered without stipulating the guide lines? (D) Without coming to a finding that the appellant has trespassed over the plaint schedule pathway can the court remand the case for an enquiry whether the appellant has the right to reduce the width of the pathway? Points: 3. The subject matter of the litigation is a part and parcel of a previous civil litigation in the form of a partition suit, O.S.No.891 of 1979. Item 3 in the final decree is the property claimed by the plaintiff and FAOs 183 & 184/2008 -:3:- defendants in the present suit. In the said final decree as item 5, there is a way set apart for the parties. “..................................................................” At one termina it is having a width of 5 links and at its end it is having a width of 6 links. So the basic document, viz., the final decree for partition describes the way as one which is having a width of 5 links at one point and 6 links at the end point. Both the suits were filed contending for the position in the process of time the width of the way has been enhanced to 2 metres and the defendants in the suit are attempting to encroach on the property and after modification of the order of injunction by the trial court, they have constructed a wall restricting the width of the passage whereby the plaintiff has requested for a mandatory injunction. 4. On the other hand, the categorical clear case of the defendants is to the effect that at no point of time the pathway has a width exceeding 5 links at one end and 6 links at the other end and nobody has parted with any property from both sides so as to have an enhancement of the width of the pathway. The suit is for injunction and declaration and prima facie the parties are bound by the decree in the partition suit which only provides a passage having a width of 5 links. The party who sets up the enhancement of width is legally bound to prove the same. A right in an immovable property can be acquired either by purchase of the property or FAOs 183 & 184/2008 -:4:- renouncement of the right by some persons. The learned Munsiff had considered the matter in the proper perspective and has pointed out the inconsistency taken by the plaintiff in both the suits. The learned Munsiff has stated that the case of PW4 who is the plaintiff in O.S.No.291 of 2002 is not consistent with the case of PW1, who is the plaintiff in the other case. PW4 would depose that the width of the pathway was increased when the property owners of either side on the said property gave some property at her request. The adjacent owner of the property is one Narayanan Nair. This Narayanan Nair was examined as DW3 and he has no case that he has given the property for increasing the width of the said pathway. So, the learned Munsiff held that the evidence adduced by the plaintiff regarding the widening of the pathway is contradictory and inconsistent. The court, later considered the value of Exts.C1 and C1(a) and C2 and C2(a). It is reported that the western compound wall of the first defendant's property is constructed, according to her, she has not made any encroachment at all. The trial court found that the Commission report did not help the plaintiff to claim pathway as described in the plaint B schedule. So, the sum and substance of the entire case is as follows: Admittedly the parties are bound by the decree in the partition suit, which provides a pathway and which specifically states the width of the pathway. If there has been any FAOs 183 & 184/2008 -:5:- subsequent widening of the pathway, it must be by a method known to law and the evidence tendered in that aspect regarding the widening of the pathway is mutually inconsistent and it is not supported by any legal materials. When against the established decree of a civil court a stand is taken by a party the burden is squarely upon that party to establish beyond doubt how the increase in the width of the pathway took place. The appellate court did not properly advert to these facts at all into its mind. Most probably it was carried away when it felt that after an order of injunction being modified during the pendency of the suit, the first defendant constructed a compound wall and therefore it went on tangent to decide the case. In a suit for declaration and injunction, the burden never shifts especially in the backdrop of the fact that both parties are bound by a decree of a competent civil court . Therefore the approach made by the learned District Judge is erroneous and therefore I find that there was absolutely no need to remand the case at all and the court should have dismissed both the appeals. Therefore I find that the entire substantial questions of law raised in the above appeals are in favour of the appellant and hold that the finding rendered by the trial court is absolutely in consonance with the facts and materials available which do not call for any interference and the appeals are only to be dismissed. FAOs 183 & 184/2008 -:6:- In the result, the FAOs are allowed and the judgment passed by the learned District Judge is set aside and the judgment and decree of the trial court is confirmed and both the suits are dismissed. But there will be no order as to costs. M.N.KRISHNAN, JUDGE Cdp/-