IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 RSA.No. 44 of 2004() -------------------- AS.91/1999 of DISTRICT COURT, THRISSUR OS.560/1997 of M.C.,VADAKKANCHERRY .................... APPELLANTS/REPDTS.2 TO 5/2ND PLNTF. AND LEGAL HEIRS OF DECEASED FIRST PLAINTIFF : ---------------------------------------------------------------------- 1. KOCHAMMU @ CHERIYATH AMMA, W/O. LATE KOCHU GOVINDAN NAIR, MANALITHARA VILLAGE, DESOM, TALAPPILLY TALUK. 2. BALAKRISHNAN, AGED 49, S/O. NOTTATH KOCHU GOVINDAN NAIR, MANALITHARA VILLAGE, DESOM, TALAPPILLY TALUK. 3. KARTHIYAYANI, AGED 45, D/O. NOTTATH KOCHU GOVINDAN NAIR, MANALITHARA VILLAGE, DESOM, TALAPPILLY TALUK. 4. INDIRA, AGED 40, D/O. NOTTATH KOCHU GOVINDAN NAIR, MANALITHARA VILLAGE, DESOM, TALAPPILLY TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): APPELLANTS/DEFENDANTS: ------------------------------------- 1. KALIKUTTYAMMA @ AMMU, D/O. MANANGATH LAKSHMI AMMA, MANALITHARA VILLAGE, DESOM, TALAPPILLY TALUK. 2. NARAYANAN NAIR, H/O. KALIKUTTYAMMA @ AMMU, MANALITHARA VILLAGE, DESOM, TALAPPILLY TALUK. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R1 & R2 SRI.P.V.BALAKRISHNAN FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.44 OF 2004 --------------------------------------------- Dated 20th July, 2011 JUDGMENT Second plaintiff and legal heirs of first plaintiff, who were impleaded in the first appeal, in O.S.560/1997 on the file of Munsiff court, Wadakkanchery are the appellants. Respondents are the defendants. Suit was filed for permanent prohibitory injunction contending that plaint B schedule property forms part of the plaint A schedule property and plaint A schedule property was purchased under Ext.A3 sale deed and subsequently Ext.A4 purchase certificate was also obtained in respect of the property. According to the appellants plaint B schedule property is a way starting from the remaining portion of RSA 44/04 2 plaint A schedule property, proceeding towards the west and joins the purambok lane on the west and reaches Manalithara Punnamparambu road, which lies towards south of the property. Plaintiffs contended that respondents have no manner of right or possession to the plaint B schedule property and they are attempting to trespass into the property and therefore, they are to be restrained by a permanent prohibitory injunction from trespassing into the plaint A and B schedule properties. Respondents resisted the suit contending that plaint B schedule property does not form part of plaint A schedule property and under Ext.A3 sale deed plaintiffs did not derive any right or title to the plaint B schedule property and property of the respondents lies on the north and south of the plaint B schedule property and they are RSA 44/04 3 using the plaint B schedule property to reach from the southern property to the northern property and appellants are not entitled to the decree sought for. 2. Learned Munsiff on the evidence of PW1, Dws.1 and 2, Exts.A1 to A7, C1 and X1 granted a decree restraining the respondents from trespassing into the plaint A or B schedule properties. Respondents challenged the judgment before District Court, Thrissur in A.S.91/1999. Learned District Judge on re- appreciation of the evidence found that the plaint B schedule property does not form part of the plaint A schedule property and plaintiffs have not claimed any right of way over the plaint B schedule property and therefore, they are not entitled to the decree for injunction sought for. Decree granted by RSA 44/04 4 the trial court was set aside and suit was dismissed. It is challenged in the second appeal. 3. Appeal was admitted on the following substantial question of law. Is the lower appellate court justified in dismissing the suit for injunction on the basis of user of plaint B schedule property by the plaintiff which is found to be a panchayat purambok land on the strength of the previous user for a large number of years by the plaintiff ? 4. Learned counsel appearing for the appellants and respondents were heard. 5. Though appellants claimed title to the plaint B schedule property , that plaint B schedule property forms part of the plaint A schedule property and the properties were RSA 44/04 5 obtained under Ext.A3 sale deed and Ext.A4 purchase certificate later, as rightly found by the first appellate court, it is absolutely clear that the plaint B schedule property does not form part of the property obtained under Ext.A3. If plaint B schedule property forms part of the property obtained under Ext.A3, description would have definitely indicated that it is not only the admitted property described as plaint A schedule excluding plaint B schedule property, but also the pathway which proceeds towards east of the said property. If the property covered under Ext.A3 is to be identified not only with reference to the survey number but also with reference to the boundaries, it will not take in the plaint B schedule property. If plaint B schedule property is part of the property obtained under RSA 44/04 6 Ext.A3, the northern boundary of part of the property should be the property of the defendants. So also the southern boundary should also be the property of defendants. Similarly, the western boundary should be the puramboke lane. Ext.A3 shows that they are not the boundaries of the property transferred under Ext.A3. If that be so, as rightly found by the first appellate court, property obtained under Ext.A3 could only be the plaint A schedule property excluding the plaint B schedule way. Therefore, based on Ext.A3, appellants are not entitled to claim title to the plaint B schedule way. Possession of plaint B schedule property as such is not claimed and the only case is that they are using the plaint B schedule way. 6. Though learned District Judge RSA 44/04 7 interfered with the decree granted by the trial court on the ground that no right of way by easement was pleaded or proved, learned District Judge omitted to take note of the fact that neither the appellants nor the respondents have a case that plaint B schedule property belongs to respondents. When the appellants contended that under Ext.A3 they have title to the plaint B schedule property, respondents in the written statement did not claim title to the plaint B schedule property. On the other hand, their case is that they have title to the property, which lies to the north and south of the plaint B schedule property. When DW1 was examined, it was admitted that property which lies to the south of plaint B schedule way was obtained by them under one document and the northern boundary of that property is the way. RSA 44/04 8 So also, it was admitted by DW1 that the property which lies to north of plaint B schedule way, having an extent of 2¾, was obtained under another document and the southern boundary shown in the document is the way. Therefore, respondents cannot claim title to the plaint B schedule property. They also cannot dispute the fact that plaint B schedule property is a way which is also admitted in the written statement. Ext.C1 report with C1 (a) plan submitted by the Commissioner shows that B schedule is a way. The written statement itself shows that plaint B schedule property is a way having a width of 3 feet and a length of 30 feet. Respondents are only claiming that they are using that way to enter from their southern property to the northern property. Ext.C1 report submitted by the Commissioner RSA 44/04 9 establishes that plaint B schedule property is specifically demarcated by existence of hibiscus plants, separating the remaining properties of the respondents on either side. In such circumstances, the only question is whether the appellants are entitled to a decree for injunction restraining the respondents from causing obstruction to their using the way. Even though appellants have no title to the plaint B schedule way, evidence establish that the way is being used by the appellants. Respondent are also claiming that they are using the way. Respondents are not entitled to cause any obstruction to the appellants using the plaint B schedule way. Similarly, appellants are also not entitled to cause any obstruction to the respondents using the way as appellants have no exclusive right over the RSA 44/04 10 way. In such circumstances, first appellate court was not justified in dismissing the suit as the decree could have been effectively modified. Appeal is allowed. Decree passed by District Judge, Thrissur in A.S.91/1999 is set aside. O.S.560/1997 on the file of Munsiff court, Wadakanchery stands decreed as follows. Defendants are restrained by a permanent prohibitory injunction from causing any obstruction to the plaintiffs using the plaint B schedule way. Defendants are also entitled to use the plaint B schedule way. Plaintiff shall not cause any obstruction in using the way. Plaintiffs or the defendants are not entitled to widen or reduce the existing plaint B schedule way, as noted by the RSA 44/04 11 Commissioner in Ext.C1 report. Parties to suffer their respective costs. M.SASIDHARAN NAMBIAR, JUDGE. uj.