IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 SA.No. 457 of 1995(D) ------------------------- AS.7/1985 of SUB COURT, MANJERI OS.236/1980 of MUNSIFF COURT, MANJERI .................... APPELLANT: RESPONDENT/PLAINTIFF ------------------------------------------ BHARGAVIKUTTY, AGED 59 YEARS;, D/o PARVATHI AMMA, THOTTAKKARA, AMARAMBALAM DESOM, ERANAD TALUK BY ADV. SRI.P.JACOB VARGHESE (SR.ADVOCATE) SRI.P.T.ARUNKUMAR SRI.P.FAZIL RESPONDENTS: APPELLANTS/DEFENDANTS ------------------------------------------------ 1. KUNJIPENNAMMA, AGED 70 RESIDING AT KOTTEKOTTA AMARAMBALAM DESOM, ERANAD TALUK 2. LAKSHMI AMMA, AGED 55, D/o KUNJIPENNAMMA RESIDING AT DO. DO. 3. NARAYANAN NAIR, AGED 45, S/o KUNJIPENNAMMA RESIDING AT DO. DO. 4. KAMALAM, AGED 35, D/o KUNJIPENNAMMA RESIDING AT KANNARATH, KARUVAMPURAM, ERNAD TALUK R3 & R4 BY ADV. SRI.R.RAJESH KOMATH SMT.S.JAYASREE SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------- S.A. No 457 of 1995 ------------------------------------------------- Dated this the 12th June 2008 JUDGMENT The plaintiff in O.S. No 236 of 1980 on the file of the Munsiff's Court, Manjeri is the appellant in this second appeal. Judgment and decree granted in her favour by the trial court have been reversed in appeal by the first appellate court and hence this R.S.A. 2. The appellant filed the suit for a decree of prohibitory as well as mandatory injunction, inter alia, on the following allegations:- The B schedule property is the kudiyirippu of the plaintiff for the last forty years and she is residing therein with her family. She purchased it in December 1971 along with other properties from Ayitha alias Kunhappa to whom the said B schedule property was allotted in partition between the heirs of Mammedkutty who was holding the property under Manjeri Kovilakom. The property lying on the eastern side of B schedule property is comprised in R.S. No 558/4A 1-A and it was a vacant plot. Along the said property runs the Amarambalam Panchayat road, running from south to north. The way to B schedule property was through the said vacant land. The property that lies on SA 457/95 2 the northern side of B schedule property is kudiyiruppu of the defendants and that is comprised in R.S. No 558/4A-2. The access for them was also through the vacant land comprised in R.S. No 558/4A-1A. The property comprised in R.S. No 558/4A 1-A which is the vacant land lies on the eastern side of B schedule property as also the kudiyiruppu of the defendants in R.S.No 558/4A2 and belongs to Palasseri Appu alias Velayudhan Nair. In 1973 Velayudhan Nair enclosed his property whereby the pathway from the house of the plaintiff towards east was closed. Plaintiff thereupon instituted O.S. No 274 of 1973 against the said Velayudhan Nair and therein the Commissioner has filed a plan and a report. That suit was for establishing the right of the plaintiff through the property marked as “a2” by the Commissioner in his plan. Before instituting the said suit, plaintiff had also complained before the Nilambur police against the said Velayudhan Nair. On the intervention of police Velayudhan Nair granted way to the plaintiff measuring 2 “six feet koles” in width and 60 “six feet koles” in length on the eastern side of the kudiyiruppu of the plaintiff and defendants and he undertook that he would not obstruct that way. That undertaking was given to the police on 28.07.1973. With regard to SA 457/95 3 A schedule property herein it is the way marked as “a3” in the plan submitted by the Commissioner in the said suit. Except the right of passage, defendants have no manner of right over “A” schedule property. As the plaintiff was provided with way as mentioned above, she did not press the suit, O.S. No 274 of 1973. The said way was used by the plaintiff for taking vehicles also. On 17.10.1980 the defendants cut down the trees standing on the eastern edge of their property and dug a chal in the said pathway with the intention of reducing its width and annexing a portion of pathway to their property. The fourth defendant was made a party as she also has got right over the kudiyiruppu of the defendants. It was reliably learnt that defendants were making attempts for further reducing the width of the way or even to close the pathway and if they do so irreparable injury would be caused to the plaintiff. Hence the defendants may be ordered by a mandatory injunction to maintain the said way at a width of 12 feet and to restrain them by a prohibitory injunction from interfering with the plaintiff's right to use the said pathway. 2. Fourth defendant remained ex parte. Defendants 1 to 3 filed joint written statement resisting the suit. In their written statement SA 457/95 4 they admit that the eastern property was a vacant compound and through that property Amarambalam Panchayat road passes and that formerly plaintiff used to go from her house towards east through the said compound which was lying open. They contended that the suit property was purchased by Velayudhan Nair alias Appu and as he enclosed the said property plaintiff could not use the way towards east and the defendants permitted the plaintiff to use the way lying on the eastern side of their property which was constructed by them. The property lying on the northern side of A schedule property was taken on lease by the first defendant in 1963 from one Moideenkutty Kurikkal. He constructed a house therein and later in 1973 a portion of the property was gifted by him to the second defendant as also to the third defendant. The remaining property was gifted by the first defendant to Kamalam and to the daughter of the first defendant on 16.05.1980. Kamalam also constructed a house in the said property and she is a necessary party to the suit. Appu Nair however did not grant any way to the plaintiff and it was therefore that these defendants permitted the plaintiff to use the Edavazhi constructed by them in their property. The defendants are not parties in O.S. No 274 of 1973 and the Commissioner's report and plan obtained therein SA 457/95 5 do not bind the defendants. It is incorrect to say that the defendants are entitled only to use the pathway and that the said pathway is granted by Velayudhan Nair from his property. It is also incorrect to say that the pathway was used for passage of vehicles also. The pathway is not having sufficient width to allow passage of vehicles. It was stated that a plan and report should be called for by deputing a commissioner at the expense of the plaintiff for the purpose of deciding the suit. The suit has been filed only to harass the defendants and is to be dismissed. 3. On the above pleadings the trial court framed necessary issues for trial and considering the evidence adduced at the trial which consisted of the oral evidence of P.Ws 1 and 2 and D.W.1 and documentary evidence, Exts A1 to A5, B1 to B4 and C1 and C2, decreed the suit allowing both mandatory as well as prohibitory injunction as prayed for. 4. The defendants filed A.S. No 7 of 1995 before the Sub Court, Manjeri assailing the decree and judgment passed by the trial court and the appellate court allowed the appeal reversing the decree and judgment passed by the trial court and dismissed the suit. In the appeal Exts. B5 and B6 were also marked on the side of the SA 457/95 6 appellants-defendants. It is aggrieved by the judgment passed by the first appellate court dismissing the suit that the plaintiff has come up in this Second Appeal. 5. This appeal was admitted on the substantial questions of law formulated in the memorandum of appeal, which are as follows: 1. Whether the lower appellate court was justified in dismissing the suit on the facts and evidence adduced before the court? 2. Whether the lower appellate court was justified in dismissing the suit for non-joinder of Pw.2, the person from whom the plaintiff obtained grant for A schedule pathway? 3. Whether the lower appellate court was justified in dismissing the suit holding that the trial court has only decreed the suit basing the facts and evidence alone? 4. Is not the lower appellate court in error after holding against the defendants' contention regarding their ownership of A schedule property and thereafter to non-suit the plaintiff by declining the reliefs of mandatory injunction and prohibitory injunction? 5. Is not the beneficiary under a grant and user of pathway having the legal right to protect the grant and his user over the pathway which have been already legally established against the third parties? 5. Heard the arguments of counsel on both sides. Right of the SA 457/95 7 plaintiff over B schedule property is not in dispute. It is also not in dispute that Velayudhan Nair @ Palasseri Appu or Appu Nair owned the properties on the eastern side of the properties of the plaintiff and the defendants and that he enclosed his property in the year 1973. It is not in dispute that the plaintiff had earlier instituted O.S. No 274 of 1973 before the Munsiff's Court, Manjeri and the Commissioner inspected the property and filed Ext. A3 plan and Ext A4 report. It is also not in dispute that the defendants' property is comprised in R.S. No 558/4A2 and the property of Velayudhan Nair alias Appu Nair is comprised in R.S.No 558/4A1A. In all the Exhibits B1, B2 and B3, the eastern boundary is described as a lane (Edavazhi) and that is conclusive proof of existence of an Edavazhi/lane just on the eastern side of the property of the defendants and of the fact that the defendants are not having ownership thereon. If the lane was intended only for access to the property of the defendants, obviously there was no necessity to provide the said lane from north to south along the entire eastern boundary of the property of the defendants. This is suggestive of the pathway having been used by the plaintiff as well. However it is common case that the use of the pathway that runs towards north from the plaintiff's property came into existence SA 457/95 8 only in 1973. Till then, even according to the plaintiff her access was to Amarambalam Panchayat road through the property of Velayudhan Nair which lies on the eastern side of the plaintiff's property. The only oral evidence adduced on the side of the defendants is that of D.W.1 Narayanan Nair, who is the third defendant in the suit. He is the son of the first defendant and brother of defendants 2 and 4. According to him, on the eastern boundary of their property there is a raised portion as boundary and that beyond east of that there is a chal and the pathway is further east to that, and that the said pathway is having a width of 6 feet. According to him that was in existence even before and it was extended upto the property of the plaintiff only in 1973 and that the said pathway is having a width of 6 feet. The evidence of D.W.1 in chief examination will go to show that the width of the lane on the eastern side of their property and on the eastern side of the plaintiff's property is having a uniform width which according to him is only 6 feet. He has stated in chief examination that the portion marked in red dotted line and marked “a b c” by the Commissioner in Ext C1 plan on the east of the property of the defendants and upto the property of the plaintiff is not land surrendered by Appu Nair but in SA 457/95 9 cross-examination he has admitted that he has witnessed Appu Nair enclosing the property in 1973 and that he is not aware as to whether Appu Nair had surrendered land for the purpose of the pathway. He has further stated that a chal on the western side of the pathway is for the purpose of draining water but all the same he has admitted that such a chal was not there on the eastern side of the property of the plaintiff. It is worthy to note that DW-1 who has admitted that he is not aware as to whether Appu Nair had surrendered any portion of the land for “A” schedule pathway has stated in chief-examination that no portion of the land belonging to Appu Nair has been taken for A schedule pathway, however stating also that they have no objection to the 6 feet pathway being used also by the plaintiff. D.W.1 has also admitted that it was after the construction of the house in their property that the lane was formed on the eastern side of their property and that the eastern boundary of the property obtained by his mother might be paramba and not pathway. In cross-examination he asserted that the pathway on the eastern side of his property belongs to them only because the eastern boundary of their property is shown in Exts. B1 to B3 as pathway. All the same he also submits that though in Ext B2 the northern boundary SA 457/95 10 is shown as pathway that pathway does not belong to them. He also stated that the pathway portion on the eastern side of the property of the plaintiff is formed by her utilising her property that forms part of plaint B schedule. However he admits that he has not stated so anywhere else; nor has the plaintiff been asked in cross- examination regarding that aspect. Thus from the evidence of D.W.1 it is clear that he has no idea as to whether Appu Nair had surrendered the land for the purpose of pathway and that the defendants' contention that the pathway belongs to them also is baseless as according to D.W.1 he claims it to be part of their property as the said pathway is described as their eastern boundary. When boundaries of the property are described the boundary so described cannot be part of the said property itself. D.W.1 has also stated that their property is comprised in R.S.No 558/4A2 and that however the defendants did not ask the Commissioner to have the property measured. He also admits that there is no evidence on record to show that the plaintiff was being permitted by them to use plaint “A” schedule pathway. D.W.1 has further admitted that the chal was formed by them though he has denied the suggestion in cross-examination that the said chal was formed within any portion of SA 457/95 11 A schedule pathway. He has also admitted that for the purpose of resurvey, properties belonging to them and the surrounding properties had been examined and surveyed, and also that in the survey sketch the width of the pathway shown is much in excess. If at all the survey authorities had measured it that could only be as found in the records and going by the lie of the property and even D.W.1 has admitted that width of plaint A schedule pathway is uniform and not that it is having only a lesser width on the eastern side of their property and is having more width on the eastern side of B schedule property belonging to the plaintiff. Exts. C1 and C2 are respectively the plan and report submitted by the commissioner in the present suit. No objection has been filed either by the plaintiff or by the defendants to Exts. C1 and C2 and therefore that can be accepted for the purpose of this case. The Commissioner has stated in Ext C2 report that plot “A” marked in the plan is the residential compound of defendants and plot “B” in the plan is the residential compound of the plaintiff and that the red line “a,b,c” marked in the plan is the disputed pathway and that it starts from the pathway “XY” that lies on the east west direction and ends at the gate of the plaintiff's house. It is further stated that there is an SA 457/95 12 anichal touching the property of the defendants from the points “a” to “b” and that the defendants admitted that it was constructed by them and that it has got one foot width and also depth of 1 foot. It is further reported by the commissioner that the width of the said pathway is 6 feet between points A and B and it is 12 feet between the points “B” and “C”. The width of A schedule pathway on the eastern side of defendants' property cannot be less than the width of the pathway on the eastern side of the plaintiff's property as even according to D.W.1 the said pathway is having uniform width. But however, by reason of absence of evidence as regards the survey number within which the pathway is comprised and as to the demarcating line between the property in survey No 558/4 A 1A lying on the eastern side of the properties of the plaintiff and defendants and the property comprised in survey No 558/4A-2 on its west belonging to the defendants, this court is unable to come to a conclusion as to how far has been encroached by the defendants into the pathway comprised in Sy No 558/4A1A. It was upto either of the parties to have the property measured as per its survey numbers so as to ascertain the exact encroachment or as to whether the defendants had surrendered any portion for the purpose of SA 457/95 13 pathway from their property comprised in R.S 558/4A2. However the fact remains that digging of chal which is on the eastern side of the property of the defendants has reduced the width of the pathway and even according to DW.1 their claim of title over the pathway is based on the description of the eastern boundary in Exts B1 to B3 as the edavazhi (lane). This shows that the defendants have not established the contentions set up by them in the written statement that the pathway belongs to them. In the circumstances however plaintiff shall not also be entitled to have the width of the pathway maintained at 12 feet on the eastern side of the property of the defendants. But all the same the chal that has been dug has certainly to be levelled and width of the pathway restored. The lower appellate court has not appreciated the evidence discussed above in the proper perspective. Having dealt with the appeal on merits, counsel on both sides submit that the substantial question of law stands answered and there is no other substantial question of law to be answered separately as framed in the memorandum of appeal on which was the appeal admitted. 6. In the result, the decree and judgment passed by the first appellate court deserves to be set aside and the judgment of the trial SA 457/95 14 court restored allowing this Second Appeal with the modification that the width of the pathway on the eastern side of the property of the defendants shall only be the width that is regained on levelling of the chal dug just on the eastern side of the boundary of the property of the defendants. The defendants shall restore the pathway levelling the chal dug by them positively within one month failing which the appellant-plaintiff shall be entitled to have it restored through court and the costs thereof recovered from the defendants. Defendants shall not in any way interfere with the peaceful enjoyment of the said pathway by the plaintiff in such modified and restored form in any manner whatsoever. The appeal is allowed as above. Parties are to suffer their own costs in this R.S.A. SD/- K.P. BALACHANDRAN Judge 12/06/2008 en Order on CMP No 1197 of 1995 ------------------------------------------ Dismissed. Id./- K.P.Balachandran, Judge 12/06/2008 [true copy]