IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 SA.No. 442 of 2000(C) --------------------- AS.251/1996 of ADDL.DISTRICT COURT, THRISSUR OS.545/1994 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANTS/RESPONDENTS/DEFENDANTS -------------- 1. SANKARANKUTTY NAIR, S/O.PATTIPARA CHIRUTHEYI AMMA, RESIDING AT PULINCHERY PADNJATH VEETIL EDAKALATHUR VIALLAGE, THRISSUR TALUK 2. VISALAKSHY D/O.PULINCHERY PADINJATH PARUKUTTY AMMA AND W/O.1ST APPELLANTS RESIDING AT -DO- BY ADV. SRI.P.R.VENKETESH SRI.P.R.RAJA RESPONDENTS/APPELLANTS/PLAINTIFFS ----------------------------------------------------------- 1. MUGAMI AMMA, D/O.PULINCHERY PADINJATH KARTHIYANI AMMA, EDAKALATHUR VILLAGE THRISSUR TALUK 2. GEETHA, D/O.PULINCHERY PADNJATH MUGAMI AMMA -DO- ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.442 of 2000 ------------------------------------- Dated this the 27th day of September 2011 Judgment The defendants in OS NO.545/94 before the Munsiff's Court, Thrissur, who suffered a decree at the hands of the lower appellate court are the appellants before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiffs, plaint item no.1 was allotted to the thavazhy of the plaintiffs as per Ext.A1 partition deed dated 18.10.1960. Those items are described as Item Nos.11 to 14 in D schedule to the partition deed. Item No.2 of the plaint schedule was allotted to the third thavazhy and that is described as item NO.3 to that document. By way of Ext.A2 exchange deed dated 22.03.1969, the plaintiffs obtained absolute right over item NO.2 of plaint schedule. The defendants held property on the northern and north western sides of item SA 442/00 2 No.1 of plaint schedule. According to the plaintiffs, their properties are demarcated by well defined boundaries and it lies separately. It is also pointed out that at some points, there are level differences between the two properties. It is admitted in the plaint that at the time of execution of Ext.A1 deed, a way having a width of 2-2.5 kole was provided for access to item No.2 of plaint schedule. According to them, as per Ext.A2 exchange deed, they purchased the entire right over item No.2 including the right over the pathway provided under the partition deed. After the execution of Ext.A2, the pathway as mentioned in Ext.A1 ceased to exist. There is dispute between the plaintiffs and defendants relating to the pathway situated on the western side. Therefore, praying for permanent injunction restraining the defendants and their men from trespassing into the plaint schedule properties and from cutting and removing the improvements situated at the northern and eastern boundaries of the plaint schedule properties and from committing waste and damages therein, the suit was SA 442/00 3 laid. 3. The suit was resisted by the defendants, pointing out that a pathway was provided under Ext.A1 partition deed and the sharers under the deed are entitled to use the pathway and the plaintiffs have no right to restrain them from using the said pathway. The parties are bound by the terms of Ext.A1 partition deed. It is also stated in the partition deed that if any obstructions are made to the use of the pathway, they can be removed. The claim of the plaintiffs that they have obtained absolute right over the pathway cannot be countenanced in view of the recitals contained in Ext.A1. Pointing out that they have right to use the pathway as provided in Ext.A1 partition deed, they prayed for dismissal of the suit. 4. On the above pleadings, issues were raised. Evidence consists of the testimony of Pws 1 to 4 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had Dws 1 and 2 examined. No documents were marked from the side of the defendants. SA 442/00 4 Exts.C1 to C2(a) commissioner's reports and plans were also marked. 5. The lower court, on the basis of the commissioner's report, found that the pathway made mention of in Ext.A1 continues to exist and the claim of the plaintiffs that it ceased to be in existence cannot be accepted. Holding that as per the recitals contained in Ext.A1, the defendants have the right to use the pathway as stipulated in the said deed, the suit was dismissed. 6. The plaintiffs carried the matter in appeal as AS No.251/96 before the District Court, Thrissur. The lower appellate court, though to a large extent, concurred with the trial court, passed a modified decree as follows : “In the result, this appeal succeeds. The judgment and decree of the court below are set aside and the appellants/plaintiffs are granted a decree for permanent prohibitory injunction restraining the respondents/ defendants and their men from destroying the northern and eastern boundary of the plaint item NO.1 or trespassing SA 442/00 5 into and taking forcible possession of the schedule properties, cutting down the trees on the northern and eastern boundary of the plaint item No.1 altering the boundaries or committing waster in the schedule properties. It is however, made clear that the decree granted hereby will not affect the right of the defendants to take water from the well in the plaint item NO1, use the 2 kol wide space towards the eastern boundary of the plaint item no.1 for access to the said well, take bath in the pond in the plaint item NO.2 and to gain access through the plaint item Nos.1 and 2 for the said purposes. It is also made clear that the decree does not affect the right of the defendants to remove the obstruction, if any, due to the existence of the trees in the said 2 kol wide space for access to the well in plaint item NO.1 in case such obstruction is not removed by the plaintiffs on request. The parties will suffer their respective costs in this appeal.” 7. Aggrieved by the said decree, the defendants have come up in appeal. SA 442/00 6 8. Notice is seen issued on the following questions of law raised in the second appeal : a) Did not the court below err in decreeing the suit for prohibitory injunction against trespass, after having found the existence of a way through the plaint schedule properties as pleaded by the defendants. b) Did not the lower appellate court err in confining the right of user of the disputed pathway which has been provided for in Ext.A1 partition deed, to the allottees of “C” schedule properties alone in Ext.A1 partition deed ? c)Did not the lower appellate court act erroneously in dismissing IA 654/2000 in AS 251/1996 filed seeking the appointment of a commissioner ? 9. The learned counsel for the appellants pointed out that the court below had omitted to note that the claim f the defendants was essentially one of easement by grant with regard to a way stipulated in Ext.A1 partition deed. At best, the restriction imposed under Ext.A1 alone could be given effect to and there was no justification for SA 442/00 7 the lower appellate court to further curtail the use of the pathway laid as per Ext.A1 for the use of the parties to the document. The learned counsel also pointed out that they had filed IA No.654/00 before the lower appellate court seeking to have a commission issued to have proper identification of the pathway and its location so that the issue involved could be properly resolved. Unfortunately, it is pointed out that that petition was not considered at all and the lower appellate court has gone on to consider the disputes between the parties. The learned counsel pointed out that the lower court was not justified in imposing restrictions in the use of the way which are not contemplated by the terms of Ext.A1 document. 10. The learned counsel for the respondents, on the other hand, pointed out that the lower appellate court has considered the issues from various angles and it has come to the conclusion that the way does exist but it can be used only in a restricted matter by the appellants herein. There are no grounds to interfere with the judgment and SA 442/00 8 decree of the lower appellate court. 11. On hearing the learned counsel on both sides and going through the records, it becomes obvious that the dispute relates to the way stipulated in Ext.A1. It is absolutely necessary to determine the way as stipulated in Ext.A1 and its location so as to effectively resolve the controversy between the parties. It is true that the commissioner's reports and sketches were obtained by the trial court. A perusal of those reports and sketches show that they are of little help to resolve the controversies involved in the case. 12. A reading of Ext.A1 shows that while the pathway is laid for the use of various sharers. It contains restrictions also. In order to understand the true nature, extent and manner of user, it is essential to have the way located as stipulated in Ext.A1. The lower appellate court ought to have accepted the prayer in IA No.654/00 and deputed a commissioner to locate the way as stipulated in Ext.A1. It was only after locating the said way that the SA 442/00 9 manner of use by the parties had to be determined. Without ascertaining the actual lie of the way, it was improper for the court below to have considered the rights of the parties. In short, it is absolutely necessary that the pathway as contemplated in Ext.A1 needs to be identified and located so as to effectively resolve the dispute. Therefore, the only option available to this court is to allow this appeal and remand the matter to the trial court for fresh disposal in accordance with law after obtaining a fresh commissioner's report and plan as stated above. The parties are at liberty to adduce further evidence, if they so choose. The parties shall appear before the trial court on 28.10.2011. The trial court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of parties before court. P.Bhavadasan, Judge sta SA 442/00 10 SA 442/00 11