IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 RSA.No. 712 of 2010() --------------------- AS.31/2006 of SUB COURT,KATTAPPANA OS.212/2004 of MUNSIFF COURT, PEERUMEDU .................... APPELLANT(S): PLAINTIFFS: ------------------------------------------ 1. BHAGAVATHI, W/O.RAMAKRISHNAN, AGED 73 YEARS, THAPASSYMADATHIL HOUSE, MURIKKADI KARA, KUMILI VILLAGE, PEERMEDUE TALUK, IDUKKI DISTRICT. 2. RAMAKRISHNAN, S/O.THAPASSY, AGED 76 YEARS, THAPASSYMADATHIL HOUSE, MURIKKADI KARA, KUMILI VILLAGE, PEERMEDUE TALUK, IDUKKI DISTRICT, PIN - 685 509. BY ADV. SRI.A.C.DEVASIA RESPONDENT(S): DEFENDANT: ----------------------------------------------- MOHANAN @ C.G.JOHN, S/O.GEORGE, CHIRAYIL PUTHENVEETTIL HOUSE, MURIKKADI KARA, KUMILI VILLAGE, PEERUMEDUE TALUK, IDUKKI DISTRICT, PIN - 685 509. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------- RSA No.712 of 2010 ------------------------------------- Dated 30th June 2010 Judgment The plaintiffs, whose suit for mandatory and prohibitory injunction, was dismissed by the courts below, are the appellants herein. 2. The first plaintiff is the owner of the plaint schedule property. According to the plaintiffs, a pathway runs along the eastern boundary, which is used by the defendants. It is alleged that on 04.02.2002, the defendants trespassed into the property and widened the pathway. At that point of time, the plaintiffs filed OS No.48/02 before the Munsiff's Court, Peermade, seeking reliefs against the defendants. It is stated that an interim order of injunction was obtained in the said suit. Even though that injunction order was in force, violating RSA 712/10 2 the order, the defendants widened the pathway. This necessitated withdrawal of the earlier suit and filing of the present suit. Praying for permanent prohibitory injunction and mandatory injunction, the suit was laid. 3. The defendants resisted the suit, pointing out that the property was not owned and possessed by the plaintiff. They denied the allegation of widening the pathway as alleged in the plaint. According to them, along the eastern boundary of the property possessed by the plaintiffs, there is a pathway which has been in existence for a long time. It has a width of 10 ft. The defendants had been using the said pathway as of right and they have a right of easement by necessity to use the same. They pointed out that the allegations raised in the plaint are false and are RSA 712/10 3 made with ulterior motives. On the basis of the above contentions, the defendants prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 and A2 from the side of the plaintiffs. The defendants examined DWs 1 to 3 and had Exts.B1 to B5 marked. Exts.C1 and C1(a) are court exhibits and CW1 was examined as court witness. 5. On an appreciation of the evidence, the Trial Court found that the allegation in the plaint and the claim made by the plaintiffs that the pathway was recently widened, was incorrect, even going by the evidence adduced by the plaintiffs themselves. It was also found that the earlier suit was withdrawn and there was nothing to show that RSA 712/10 4 permission was obtained to institute a fresh suit. 6. The portion of the evidence of PW1 which persuaded the Trial Court to dismiss the suit was that PW1 had admitted that the road, which was noticed by the Commissioner when he made a visit to the property on 09.04.2002, had been in existence from 1991 onwards. That belied the case of the plaintiffs. Even though the Surveyor's report was in favour of the plaintiffs, since it was found that the dates mentioned by the Surveyor were not consistent, it was held that the said report was not acceptable. It needs to be noticed here that the earlier suit was withdrawn after the Commissioner had filed his report, which was three months after his visit. Entering the above finding, the Trial Court dismissed the suit. RSA 712/10 5 7. The matter was carried in appeal by the plaintiffs as AS No.31/06 before the Sub Court, Kattappana. The lower Appellate Court re-evaluated the evidence on record and found that the findings of the Trial Court are fully justified, going by the evidence on record. Accordingly, the appeal was dismissed. 8. The learned counsel for the appellants before this Court submitted that the Courts below have not adverted to the evidence in the proper perspective and it has resulted in miscarriage of justice. It is pointed out that the courts below were not justified in coming to the conclusion that the alleged road was in existence for a considerable period of time. The courts below ought to have found that it was recently laid. It is also pointed out that the pathway was widened during the RSA 712/10 6 subsistence of the injunction order in the earlier suit. It is also pointed out that the courts below were not justified in discarding the Surveyor's report and plan. 9. Though the above arguments may look attractive, on a closer scrutiny, it can be found to be without any basis whatsoever. The definite case of the plaintiff is that the pathway was widened after 09.04.2002 and that necessitated the filing of the present suit. DW1, the Commissioner who had filed report in the earlier suit i.e., OS No.48/02 in his deposition says that there was a road as reported in Ext.B4 on the date of his visit. Here, one may notice the deposition of DW1, who has stated that the road was in existence at least since 2004. If that be the position, the courts below were perfectly justified in discarding the Surveyor's report and RSA 712/10 7 stated that the road has been recently widened. It is significant to notice that the Surveyor visited the property on 29.11.2005. Even according to PW1, the road was constructed in 2002. 10. The learned counsel for the appellant then pointed out that certain documents were produced before the lower Appellate Court and the said Court ought to have considered those documents. No justifiable reason is given as to why those documents were not produced before the Trial Court. Therefore, there is nothing wrong with the lower Appellate Court in not having considered those documents. Apart from the above, it is seen that both the courts below have found that though the earlier suit relating to the very same matter as OS No.48/02 before the same court was stated to be withdrawn with liberty to move afresh, on RSA 712/10 8 scrutiny, it was found that no permission to institute a fresh suit was obtained. Even assuming there was permission, that will not help the plaintiffs in this case. The evidence clearly shows that the allegation of widening the road in 2002 is not true. If that be so, the courts below were perfectly justified in non suiting the plaintiffs. 11. Faced with the above situation, the learned counsel for the appellants pointed out that the findings in this case may not prejudice him in case he seeks to file a suit based on title. This is a suit for injunction simpliciter and therefore, the findings in this case will not prejudice the appellants in case he files a suit based on his title. With the above observations, the RSA is dismissed. P.BHAVADASAN, JUDGE sta RSA 712/10 9 RSA 712/10 10