IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR SATURDAY, THE 23RD MAY 2009/9TH JYAISTHA, 1931 FAO.No. 110 of 2003() --------------------- AS.188/1999 of ADDL.DISTRICT COURT, THRISSUR OS.740/1995 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/1ST RESPONDENT: --------------------------------------------- ALLIED HOSPITAL (P) LTD.,GURUVAYOOR ROAD ARTHAT VILLAGE DESOM,TALAPPILLY TALUK, REP. BY ITS MANAGING DIRECTOR, DR.K.N.BHASKARANUNNI, AGED 49 YEARS, S/O.VYLERI MANARKAD NARAYANAN NAMBOOTHIRI,GURUVAYOOR AMSOM,THIRUVENKIDOM DESOM, CHAVAKKAD TALUK. BY ADV. SMT.M.HEMALATHA RESPONDENT(S): APPELLANT & 2ND RESPONDENT: ------------------------------------------ 1.ARTHAT ST.MARY'S SIMHASANA CHURCH, ARTHAT VILLAGE, THALAPPILLY TALUK, REPRESENTED BY TRUSTEE, T.C.IPE, AGED 75 YEARS,ST/O.THOLATH CHERU THRISSUR ROAD, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK. 2.ARTHAT GRAMA PANCHAYAT, ARTHAT VILLAGE, THALAPPILLY TALUK, REP.BY ITS SECRETARY, ARTHAT GRAMA PANCHAYAT, P.O. ARTHAT, THRISSUR DISTRICT. ADV. SRI.M.BALAGOVINDAN FOR R1 SRI.BIJU KURIAKOSE FOR R1 SMT.MINI.V.A. FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD on 23-05-2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * F.A.O. 110 of 2003 * * * * * * * * * * * * * * * * * * Dated: 23rd May, 2009 JUDGMENT The first defendant in O.S. 740 of 1995 on the file of the Munsiff's Court, Chavakkad is the appellant. The said suit instituted by the first respondent herein is one for a declaration that the act of the first defendant/appellant in constructing a wall at the entrance of the pathway in dispute and thereby closing the same preventing access to the plaintiff Church namely, Arthat St. Mary's Simhasana Church was illegal and for a mandatory injunction directing the first defendant to remove the newly constructed wall and for a prohibitory injunction restraining the first defendant from obstructing the disputed pathway. 2. The case of the first respondent/plaintiff can be summarised as follows:- The plaint schedule Church compound including the Arthat Simhasana Church building absolutely belongs to the plaintiff Church the Church and its cemetery are situated in the plaint schedule property. To the south of the Church compound, there is an ancient pathway running west to east parallel to the southern F.A.O. 110 of 2003 -:2:- boundary of the plaint schedule property providing entry into the cemetery which is situated towards east of the church compound. The said pathway is passing through the purambokku property vested in the Arthat Panchayath. The pathway starts from the Guruvayoor-Kunnamkulam main road running north-south along the western boundary of the plaint schedule property. The first defendant who has property to the south of the plaint schedule property and who is running a hospital by name Allied Hospital has constructed a compound wall along the western boundary of the first defendant's property in such a way as to obstruct the access to the public pathway referred to above. Hence, the suit. 2. The suit was resisted by the first defendant contending inter alia as follows:- The suit is not maintainable and the plaintiff has no cause of action. The property to the south of the plaint schedule property was the property of one David. The said property was purchased by this defendant about 4 years back. There is no purambokku land or a pathway in the said property purchased by this defendant, as alleged by the plaintiffs. There is no pathway on the southern side of the plaint schedule property. Along the western boundary of the property purchased by this defendant from David there is a compound wall which is about 25 years old. The said compound wall has been constructed in continuation of the western boundary wall of the plaint schedule property. This defendant has not put up any compound wall on the western side after this defendant F.A.O. 110 of 2003 -:3:- purchased the property from David referred to above. There were certain kudikidappucars of David in the property purchased by this defendant and a way had been provided for them through the northern side of this defendant's property. But after the coming into force of the Kerala Land Reforms Act, the kudikidappukars were shifted to the southern side of the property and thereafter there was no pathway retained or used for the aforesaid purpose. The plaintiff had no right of way through this defendants' property formerly and there was no entry into the cemetery from that way. There is a tarred road along the northern boundary of the plaint schedule property and having access to the cemetery. Mention about the pathway along the northern boundary of the property of this defendant in the title deed came to be made as it was carried forward from the anterior title deed. For the past 25 years the said pathway is not in existence. This defendant has constructed a compound wall along the northern boundary of this defendant's property. It is the said construction which has provoked the plaintiff to institute the present suit. The suit is without any bona fides and liable to be dismissed with costs. 3. The 2nd defendant Arthat Grama Panchayath filed a written statement contending as follows:- On the southern side of the plaintiff's property, there is a purambokku which belongs to this Panchayath. The first defendant informed the Panchayath about the construction of a compound wall and this defendant permitted construction F.A.O. 110 of 2003 -:4:- excluding the purambokku. 4. The Trial Court framed 7 issues for trial. On the side of the plaintiff, two witnesses were examined as P.Ws 1 and 2 and 10 documents were got marked as Exts.A1 to A10. On the side of the defendants, two witnesses were examined as Dws 1 and 2 and Exts.B1 and B2 were marked. The Advocate Commissioners deputed by the trial court filed Exts.C1 and C3 reports and Ext.C2 plan and Exts. C4 report and C5 plan. 5. The learned Munsiff, after trial, as per judgment dated 27-1-1999 dismissed the suit holding that the evidence disclosed that the western boundary wall of the southern property of the first defendant was constructed more than 15 years ago, that the plaintiff had failed to prove any user as of right of the alleged pathway passing through the defendants' property situated outside the plaint schedule property so as to reach the cemetery, that the evidence showed that the dead bodies were brought into the Church through the wide gate provided for the church compound (plaint schedule property) from the Guruvayoor-Kunnamkulam main road and the dead bodies after the funeral obsequies were taken to the cemetery from the church compound directly, that along the northern boundary of the plaint schedule property there is the Mar Osthathios road which is a tarred road from which there is a direct access into the cemetery immediately after the church compound, that the plaintiff cannot claim any right over the southern property of the first defendant for having access to the F.A.O. 110 of 2003 -:5:- cemetery situated towards the eastern side of the church compound and that the alleged pathway over which the plaintiff claimed right of user was not described giving material particulars in the plaint nor was it scheduled to the plaint as required by Order VII Rule 3 C.P.C. 6. Aggrieved by the judgment and decree dated 27-1-1999 passed by the plaintiff filed an appeal as A.S. No. 188/1999 before the District Court, Thrissur. As per judgment dated 17-7-2003, the I Addl. District Judge set aside the judgment and decree passed by the trial court and remanded the case to the trial court for fresh disposal after giving the plaintiff an opportunity to amend the plaint so as to give full particulars regarding the pathway in respect of which relief was claimed. Hence, this appeal filed under Order XLIII Rule 1 (u) C.P.C. by the first defendant. 7. Since this appeal is virtually a Second Appeal, in the light of the decision of the Apex Court in Narayanan v. Kumaran – 2004 (4) SCC 26, the Memorandum of Appeal ought to have formulated substantial questions of law in terms of Sec. 100 C.P.C. This Appeal will lie only on such substantial questions of law, formulated in the memorandum of appeal. But, then, there is no express provision in the C.P.C., obliging the appellant in an appeal under Order XLIII Rule 1 (u) C.P.C. to formulate substantial questions of law in the memorandum of Appeal. It was only on 16-3-2004 that the Apex Court ruled that such substantial questions of law should be formulated in the F.A.O. 110 of 2003 -:6:- memorandum of appeal. Hence, the appellant cannot be found fault with for not formulating any substantial question of law. From the facts and circumstances of the case, the following substantial question of law arises for consideration in this Appeal:- “When, inspite of the specific plea taken by the first defendant in the written statement that the plaintiff had failed to give particulars of the alleged pathway as enjoined by Order VII Rule 3 C.P.C., no attempt was made by the plaintiff to amend the plaint and the parties went for trial knowing fully well that the right which was claimed was a right of user over the pathway allegedly passing through the southern property of the first defendant, was the lower appellate court justified in setting aside the decree passed by the trial court and remanding the case to that court for the sole purpose of giving the plaintiff an opportunity to comply with Order VII Rule 3 C.P.C. “ ? 8. Apart from the oral evidence in the case, or the three Commission reports filed in the case conclusively showed that the western boundary wall of the southern property of the first defendant was constructed more than 15 years old. If, so, the case of the plaintiff that the first defendant recently obstructed the plaintiff in using the alleged pathway passing through the first defendant's property was demonstrably false. The evidence in F.A.O. 110 of 2003 -:7:- the case would clearly show that the plaint schedule church compound with the cemetery at its rear portion and the southern property of the first defendant are lying adjacent on the eastern side of the Guruvayoor-Kunnamkulam main road which runs north-south. The evidence on record further shows that the church compound which opens into the Guruvayoor- Kunnamkulam road has a large gate through which dead bodies used to be brought into the Church and after the funeral obsequies the dead bodies used to be taken to the cemetery directly from the church compound itself. There is also the evidence showing that the northern boundary of the Church compound is also a road by name Mar Osthathios road from which after the Church compound there is a direct access into the cemetery through a convenient opening in the old compound wall. It is over and above the said access to the cemetery that the plaintiff was claiming a third access to the cemetery through the southern property of the first defendant laying a claim over the alleged pathway starting from the Guruvayoor-Kunnamkulam main road and passing along the southern boundary of the church compound but outside the church compound. All those particulars of the said parthway were not furnished in the plaint. But both parties were very well aware of the claim made by the plaintiff. That apart, sufficient opportunities also had been given to the plaintiff to comply with Order VII Rule 3 C.P.C. That had not been done. The lower appellant court was therefore not at all justified in F.A.O. 110 of 2003 -:8:- setting aside the judgment and decree passed by the trial court and remitting the case to the trial court merely for enabling the plaintiff to comply with Order VII Rule 3 C.P.C. In this view of the matter, the order of remand passed by the lower appellate court is not sustainable. The substantial question of law formulated as above is answered in the negative. The impugned judgment passed by the lower appellate court is set aside and the matter is remitted to the lower appellate court for disposal of the appeal namely, A.S. 188 of 1999 afresh on the merits with the evidence already on record and without a further remand of the case to the trial court. The appeal shall be disposed of uninfluenced by the observations and findings in this judgment. The parties shall appear before the lower appellate court on 22-6- 2009 without any further notice. The lower appellate court shall dispose of the appeal on the merits expeditiously and at any rate within 8 months of receipt of a copy of this judgment. The Registry shall re-transmit the lower Court records forthwith. Dated this the 23rd day of May 2009. Sd/- V. RAMKUMAR, (JUDGE) ani. F.A.O. 110 of 2003 -:9:-