IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH FEBRUARY 2010 / 21ST MAGHA 1931 SA.No. 691 of 1996(K) ----------------------------------- AS.82/1992 of ADDL. DISTRICT COURT (ENQUIRY COMMR. & SPL.JUDGE), THRISSUR OS.323/1988 of M.C., WADAKKANCHERRY .................... APPELLANTS (APPELLANTS/PLAINTIFFS 2 TO 7& D3): 1. KALLYANI AMMA. 2. KOMALAM. 3. SURESH. 4. JAYAN. 5. GIRIJA (MINOR). 6. KALA (MINOR). 7. A.GOPI. 1st APPELLANT IS THE D/O ADVAKKAT PARUKUTTY AMMA. 2nd APPELLANT IS THE WIDOW OF RAVUNNY NAIR AND APPELLANTS 3 TO 6 ARE THEIR CHILDREN. 7th APPELLANT IS THE /SO FIRST APPELLANT. MINOR APPELLANTS 5 AND 6 REP. BY GUARDIAN MOTHER 2nd APPELLANT. APPELLANTS ARE RESIDING AT THALASSERY VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENTS (RESPONDENTS/DEFENDANTS 1 AND 2): 1. KALI. 2. CHAMI. 1st RESPONDENT IS THE W/O 2nd RESPONDENT. RESPONDENTS ARE RESIDING AT UNIKUNNU COLONY, ARANGOTTUKARA VILLAGE, TALAPPILLY TALUK. ADV.SRI.M.R.VENUGOPAL FOR R1 & R2 SMT.DHANYA P.ASHOKAN FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- S.A.No.691 of 1996 -------------------------- JUDGMENT Plaintiffs 2 to 7 and third defendant in O.S. No.323/1988 on the file of the Munsiff's Court, Wadakkanchery are the appellants. Defendants 1 and 2 are the respondents. The suit was for permanent prohibitory injunction restraining defendants from trespassing into the plaint A schedule property and from carving out a way through the property and also a mandatory injunction to close down the structure put up by the respondents to enter into the plaint A schedule property from their property. 2. Appellants are claiming that they have right, title and possession to Item Nos.1 and 2 of plaint A schedule property under Exhibit A1 partition deed and Exhibit A2 assignment deed and Item No.3 of the plaint schedule properties was purchased by appellants 1 and 7 under Exhibit A3 sale deed. Appellants 1 to 6 would contend that SA 691/96 2 they were in possession of the plaint schedule properties on behalf of the seventh appellant also and as he was not in station, he was impleaded as the third defendant in the suit. It is contended that though respondents have no right of way through plaint A schedule property, they are attempting to carve out a way through plaint A schedule property and therefore, sought a decree for permanent prohibitory injunction restraining them from using any portion of plaint A schedule property as a way and also a mandatory injunction to close down the structure put up by them to enter into plaint A schedule property. According to the appellants, respondents have a way, as described in plaint B schedule, towards the west. 3. Respondents resisted the suit contending that the suit was instituted suppressing existence of a way, which was there, even before the appellants obtained the right in plaint A schedule property. It was contended that the properties SA 691/96 3 obtained under Exhibit A1 partition deed by the appellants would show that on the north of plaint A schedule property, there is a way and the western most portion therein was subsequently divided under Exhibit B2 partition deed. Under Exhibit B2 partition deed also existence of a way on the northern boundary is shown and it is the right obtained under Exhibit B2 by the assignor, which was purchased by appellants 1 and 7 under Exhibit A2 assignment deed. Appellants are not entitled to the decree for injunction when respondents are entitled to use the existing way. It is contended that respondents have no other way, except the way which lies to the north of plaint A schedule property and therefore, the suit is to be dismissed. 4. Learned Munsiff, on the evidence of PWs 1 to 3 and DWs 1 to 3 and Exhibits A1 to A5, B1 and B2 and C1, C1(a) and C2, dismissed the suit holding that there exists a way through the northern side SA 691/96 4 of Item Nos.1 and 2 of plaint A schedule property and therefore, appellants are not entitled to the decree for injunction. Appellants challenged the judgment and decree before District Court, Thrissur. Learned Additional District Judge, on re- appreciation of the evidence, found that the suit being essentially one for permanent prohibitory injunction, the right of way claimed by the respondents is not to be decided and if the evidence establishes that before the institution of the suit there existed a way, appellants are not entitled to the decree sought for. Relying on the documents by which appellants and respondents obtained right in the properties, learned Additional District Judge found that there existed a way much earlier and the suit was filed suppressing that fact and therefore, appellants are not entitled to the decree sought for and dismissed the appeal. This second appeal is filed challenging the concurrent decree and judgment. SA 691/96 5 5. Though the appeal was admitted on 26.9.1996 and notice was issued to the respondents, no substantial question of law was formulated. Appeal memorandum shows the following substantial questions of law as formulated by the appellants: 1. In a suit for injunction, is not possession of the property on the date of suit alone material and when the defendants raise a plea of right of easement by necessity, does it not indicate possession of the property by the plaintiffs, particularly in the absence of proof as required by law, in relation to such right. 2. In deciding the question whether there existed a pathway, is not possession as on the date of suit alone material and the suit being one for injunction, whether the courts below were right in referring to certain recitals in certain earlier documents to enter a finding regarding the existence of a pathway. 3. Is not the decision of the courts below vitiated by reason of misreading the pleadings and the evidence on record? 6. Learned counsel appearing for the appellants and the respondents were heard. 7. As no substantial question of law was formulated, it is to be considered whether any SA 691/96 6 substantial question of law is involved in the second appeal. 8. Item Nos.1 and 2 of plaint A schedule property, admittedly, originally belonged to the Tharwad of Cheethamma. Under Exhibit A1 partition deed, the properties were divided. Executant No.4 therein is Kallyani Amma, Executant No.5 is Ravunny Nair and Executant No.6 is Narayanan Nair. Under Exhibit A1, Item Nos.3 and 4 of the properties scheduled therein were allotted to the shares of the second thavazhy, consisting of Kallyani Amma, the first appellant and Narayanan Nair. Item No.4 is admittedly Item No.1 of plaint A schedule property. Exhibit A1 shows that Item No.4 was actually part of one property, which was divided into three items. Item No.2 was allotted to the first thavazhy and the remaining item, as Item No.6, was allotted to the third thavazhy. 9. A reading of Exhibit A1, with the description of Item Nos.2, 4 and 6 therein, makes it absolutely SA 691/96 7 clear that the property in Sy.No.95 was divided into three plots. The western plot is Item No.2, the middle plot is Item No.4 and the eastern plot is Item No.6. The boundaries shown in respect of Item Nos.2, 4 and 6 establish that the northern boundary is a lane (Edavazhy), the eastern boundary is the remaining property, the southern boundary is kunnuparamba and the western boundary is chala. The western plot, namely Item No.2, was subsequently divided into two plots under Exhibit B2 partition deed dated 10.4.1964. Exhibit B2 shows that, thereunder, the western portion of Item No.2 of Exhibit A1 property was divided into two plots. The eastern plot was allotted to Krishnan Nair as Item No.3 and the western property was allotted to Kali as Item No.2. Exhibit B2 also shows that the northern boundary of Item Nos.2 and 3 is a lane, as in Exhibit A1 partition deed. Item No.2 of plaint schedule properties was purchased by appellants 1 and 7 from one of the legal heirs of Krishnan Nair SA 691/96 8 under Exhibit A2 assignment deed. Exhibit A2 assignment deed shows that it was the legal heir of Krishnan Nair, who was allotted Item No.2 of Exhibit B2 partition deed, who sold the property to appellants 1 and 7. But, while executing Exhibit A2 assignment deed, boundaries of the property have been changed from the boundaries shown in Exhibit B2. When Exhibit B2 shows that the northern boundary of the property allotted to Krishnan Nair is a lane. When the legal heir of Krishnan Nair assigned that property under Exhibit A2, the northern boundary is shown as Karipalikudiyirupu paramba instead of lane. It is on that basis appellants contended that there was no way to the north of Item No.2 of plaint schedule properties. What was obtained as Item No.4 of Exhibit A1 partition deed by the appellants is Item No.1 of plaint A schedule property, which lies to the south of the northern lane. Only the property, which lies to the south of the lane, was divided under Exhibit SA 691/96 9 B2 and obtained by Krishnan Nair. Hence, under Exhibit A2 also appellants can claim only the property, which lies to the south of the lane. They cannot deny the existence of the way on the north of Item Nos.1 and 2 of plaint A schedule property. 10. Item No.3 of plaint A schedule property was purchased by appellants 1 and 7 under Exhibit A3 sale deed. Exhibit A3 establishes that the property sold thereunder is Item No.2 of Exhibit A5 partition deed. Exhibit A5 partition deed shows that the property, obtained under the Purchase Certificate from the Land Tribunal, was divided into three plots. The western plot was allotted as Item No.3 and the eastern plot was divided into northern and southern plots. The northern plot was allotted as Item No.1 and the southern plot was allotted to the assignor of Exhibit A3, as Item No.2. Exhibit A5 also shows that while dividing the property into three, a way, having a width of one kole, was left on the southern side of Item No.2 SA 691/96 10 property, allotted to the assignor under Exhibit A3, for the use of Item No.3. When Exhibit A5 shows that the northern boundary of the property allotted to the assignor under Exhibit A3 is the property allotted to Executant No.1 therein and the southern boundary is the way left for the use of Item No.3 therein, Exhibit A3 does not show the said boundaries. As per Exhibit A3, the eastern boundary is a Panchayat way. In Exhibit A5, it is shown as a lane (Edavazhy). When the southern boundary of Exhibit A3 property should be Item No.1 of Exhibit A5 partition deed, it is shown in Exhibit A3 as a way, having a width of three feet. So also, the southern boundary of Exhibit A3 is shown as the property of Kallyani Amma, when, as per Exhibit A5 partition deed, it is the way left for the use of Item No.3. According to the appellants, Item No.3 lies immediately to the north of Item No.1 of plaint schedule properties. If that be so, from Exhibit A5 partition deed, it is clear that in SA 691/96 11 between Item No.1 of plaint schedule properties and the property transferred under Exhibit A3, there should be a way and that way should be continuing to the western property. Respondents have purchased the property under Exhibit B1 from the legal heir of Kali, to whom Item No.2 of Exhibit B2 property was allotted. Exhibit B1 also shows that the northern boundary is a way. In such circumstances, the question is whether appellants are entitled to a decree for permanent prohibitory injunction based on the allegation that no way exists through the plaint A schedule property and respondents are attempting to carve out a way through plaint A schedule property. 11. True, in an ordinary suit for injunction, when defendants raise a claim that they have a right to use a portion of the suit property as a way, while deciding the question whether plaintiffs are entitled to the decree for permanent prohibitory injunction, the right of way claimed by SA 691/96 12 the defendants is necessarily to be decided. In such a suit, when defendants are not claiming any right or possession in the plaint schedule property, except the claim that they have a right of way through that property, if they have no right of way, plaintiffs are entitled to get a decree for injunction. To that extent, argument of the learned counsel appearing for the appellants is to be accepted. 12. But the question is, when the suit was filed on the allegation that respondents are attempting to trespass into the plaint schedule property to carve out a way and the evidence discloses that there existed a way originally, the question is whether plaintiffs are entitled to get a decree for injunction. In such a suit, when the very existence of a way was suppressed by the plaintiffs, the court need not decide the right of way claimed by the respondents, if it is proved that there existed a way, which was intentionally SA 691/96 13 suppressed in the plaint. Learned Additional District Judge found that in the nature of the contentions, right of way claimed by the respondents is not to be decided in the suit. Argument of the learned counsel appearing for the appellants is that as respondents are claiming only a right of way through plaint A schedule property, the question should have been decided and if respondents are not entitled to a right of way, a decree for injunction should have been granted. 13. A decree for injunction is, definitely, a discretionary relief. If plaintiffs approached the court suppressing the true fact that there exists a way and alleging that respondents are attempting to trespass into plaint A schedule property to carve out a way, learned Additional District Judge was justified in holding that the right of way claimed by the respondents is not to be decided in such a suit and if it is established that there existed a way earlier to the filing of the suit, plaintiffs SA 691/96 14 are not entitled to the decree for injunction. That exactly is the case herein. 14. Appellants are claiming Item No.1 based on Exhibit A1 partition deed. Item No.1 of plaint A schedule property is Item No.4 property of Exhibit A1 partition deed. The northern boundary of Exhibit A1 is a way. Item No.2 of plaint A schedule property, which lies immediately to the west of Item No.1 of plaint A schedule property, is claimed by the appellants under Exhibit A2. The right obtained under Exhibit A2 is the right allotted to the first thavazhy of Exhibit A1 property. As stated earlier, Item No.2 of Exhibit A1 property was later divided into two plots under Exhibit B2 as eastern and western plots. Exhibit B2 also shows that the northern boundary of both the eastern and western plots is a way. It is the western plot which was assigned under Exhibit A2. Though Exhibit A2 does not show the northern boundary as a lane, when, what could be assigned under Exhibit A2 is SA 691/96 15 only the right obtained under Exhibit B2, which shows that the property so transferred is the property which lies to the south of the way, existence of a way on the north cannot be disputed. Similarly, Exhibit A3 assignment deed though shows that the northern boundary of the property is a lane. But, Exhibit A5 partition deed shows that the property allotted to the assignor under Exhibit A3 is the property which lies to the north of the way. If that be so, the southern boundary of the property sold under Exhibit A3 should be shown as the way. Hence, existence of a way to the south of the property, transferred under Exhibit A3, cannot be disputed. When the property obtained under Exhibit A3 is the property, which lies to the south of Item No.1, it is clear that there is a way in between the two plots, viz. Item Nos.1 and 3. In such circumstances, the factual finding of the first appellate court that there existed a way through the northern portion of Item Nos.1 and 2 of SA 691/96 16 plaint A schedule property and to the south of Item No.3 of plaint A schedule property is perfectly correct. In such circumstances, when the suit was filed suppressing the existence of a way and on the allegation that respondents are attempting to carve out a way by trespassing into plaint A schedule property, learned Additional District Judge was justified in holding that appellants are not entitled to the decree for injunction. I find, no substantial question of law is involved in the appeal or any reason to interfere with that finding. It is made clear that right of way is not being decided in the suit. It is also made clear that dismissal of the suit will not disentitle the appellants from instituting a proper suit. Appeal is disposed. No costs. 10th February, 2010 (M.Sasidharan Nambiar, Judge) tkv SA 691/96 17 M.Sasidharan Nambiar, J. -------------------------- S.A.No.691 of 1996 -------------------------- JUDGMENT 10th February, 2010