IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 SA.No. 844 of 2001() -------------------- AS.143/1997 of II ADDL. DISTRICT COURT, KOLLAM OS.436/1995 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT(S): -------------------- 1. BHANUMATHI AMMA INDIRA AMMA, VALLIYAMUKKADA VEEDU, ANDAMUKKAM CHERRY, KOLLAM. 2. RAMAN PILLAI BALAKRISHNA PILLAI -DO- -DO- 3. BALAKRISHNA PILLAI VENUGOPALAN NAIR -DO- -DO- BY ADV. SRI.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR RESPONDENT(S): ---------------------- 1. SANKU PILLAI AYYAPPAN PILLAI, VALIYAMUKKADA VEEDU, ANDAMUKKAM CHERRY, KOLLAM. 2.RATNAMMA, W/O.AYYAPPAN PILLAI OF -DO- 3. MEENAKSHY AMMA OF -DO- 4. AMBUJAKSHY AMMA OF -DO- 5. JAYASREE, KARTHIKA NIVAS, NEAR APSARA THEATRE, PATTATHANAM, VADAKKEVILA, KOLLAM. 6. PRIYA, D/O.AMBUJAKSHI AMMA, VEENA SAUPARNIKA, KANNIMEL, KILIKOLLUR, KOLLAM. ADV. SRI.P.B.SURESH KUMAR(QUILON) FOR R1TO6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 9/11/2011, THE COURT ON 11/11/2011 DELIVERED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- Second Appeal No.844 of 2001 ----------------------------------------------- Dated 11th November, 2011. J U D G M E N T This Second Appeal is filed by the plaintiffs in O.S.436/95 on the file of the Additional Munsiff Court, Kollam. The respondents herein are the defendants in that suit. The suit was filed by the plaintiffs for a permanent injunction to restrain the defendants from causing any obstruction to the plaintiffs in using the plaint B schedule pathway for taking two wheelers to the plaint A schedule property and for taking goods in headload to the plaint A schedule property. 2. The defendants filed written statement contending that the plaintiffs have no right over the plaint B schedule pathway and that the plaintiffs are not entitled to get any reliefs in the suit. After taking evidence, the Munsiff Court decreed the suit and defendants were restrained by a permanent injunction from causing any obstructions to the plaintiffs user of the plaint B schedule pathway for taking goods in headload to the plaint A schedule property. Against that judgment and decree, the defendants filed A.S.143/97 before S.A.844 of 2001 2 the II Additional District Court, Kollam and that appeal was allowed and the judgment and decree of the trial court was set aside. Against that judgment and decree, the plaintiffs/respondents filed this Second Appeal. 3. Heard learned counsel for the appellants and the learned counsel for the respondents. 4. Learned counsel for the appellants submitted that the lower appellate court ought to have found that the suit was correctly decided by the trial court and should only have confirmed the same instead of setting it aside. It is also submitted that the right of passage through any pathway will naturally include the right of taking any material by hand or headload as the nature of the pathway would permit. Defendants have no case that the pathway is not having sufficient width as to take headloads or two wheelers. It is further submitted that the finding of the lower appellate court that the right of plaintiffs as per Ext.B4 partition deed is only to use the pathway for access to the property for the convenience of their residence and not for taking vehicles or any business purpose, is erroneous and unreasonable. There is no such S.A.844 of 2001 3 restriction or limitation in the partition deed, not to take any materials on headload; otherwise than for the 'convenience of residence'. There is also no restriction to take materials to shops or for business. In the partition deed itself, there is reference to shop rooms, which would imply that the right of passage includes the right of passage to those shop rooms as well evidently for business purposes. It is submitted that the right of passage over a pathway will naturally include the right of taking such vehicles(here, two wheelers) as can be taken through the pathway, if not expressly prohibited. There is no such prohibition in the partition deed. Learned counsel for the respondents supported the judgment of the lower appellate court. 5. There is no dispute that the second plaintiff is the wife of first plaintiff and the 3rd plaintiff is the son of plaintiffs 1 and 2. The plaintiffs and defendants are relatives. The plaint A schedule item No.1 property was obtained by the first plaintiff as per sale deed No.3522/1960 executed by the 2nd plaintiff. The plaintiffs allege that the plaint A schedule item No.3 property is in the absolute possession and enjoyment of the 2nd S.A.844 of 2001 4 plaintiff and he has constructed a house therein and plaintiffs are residing in the said property for the last more than 30 years. The plaintiffs allege that plaint B schedule pathway is the pathway for ingress and egress to the plaint A schedule property and that they are using the said pathway for the last more than 30 years. The lean-to the northern side of the plaint A schedule item No.1 property was divided into two and the western portion of the lean-to was rented out to the first defendant and the defendants 1 and 2 are residing in that portion. The plaintiffs also allege that the defendants have no manner of right over the said portion of the lean-to. There is a padippura at the entrance of the B schedule pathway from the Paikkada road. The plaintiffs allege that they are using the said padippura and the B schedule pathway for ingress and egress to their property and for taking two wheelers and for taking goods in headload. The defendants have no manner of right to obstruct the plaintiffs user of the B schedule pathway as aforesaid. The third plaintiff is conducting agency business of the Parlay Products etc. from January, 1995 onwards and the third plaintiff is stocking the items of his business in the plaint A S.A.844 of 2001 5 schedule item No.2 property and in one of the rooms in the house in plaint A schedule item No.3 property. The plaintiffs allege that the third plaintiff is taking the goods for stocking through the plaint B schedule pathway. The plaintiffs demanded the defendants 1 and 2 to vacate the eastern portion of the lean-to in which they are residing. Since the plaintiffs demanded the defendants to vacate the lean-to they are on inimical terms with the plaintiffs. So the defendants are causing obstructions to the plaintiffs in using the plaint B schedule pathway for taking goods in headload and also for taking two wheelers to the plaint A schedule property. There is no dispute that 2nd plaintiff is the mother's sister of defendants 1 and 3. 2nd defendant is the wife of first defendant and defendants 4 and 5 are the children of defendants 1 and 2 and 6th defendant is the daughter of 4th defendant. The family property of the 2nd plaintiff was partitioned under Ext.B4 partition deed in the year 1960. The 2nd plaintiff is party No.3 in Ext.B3. The plaint schedule item No.1 was allotted to the share of the 2nd plaintiff under Ext.B4. 1st plaintiff claims right upon the A schedule item No.1 under Ext.A1 sale deed. Plaint A S.A.844 of 2001 6 schedule item No.2 is a portion of A schedule item No.1. 6. Regarding the existence of plaint B schedule pathway, the trial court observed in paragraph 8 of the judgment as follows : “The defendants in their written statement contended that there is no pathway in existence as described in plaint B schedule. A commission was taken out in this case and the report, mahazar and plan filed by the Commissioner are marked as Exts.C1 to C3. The Commissioner has reported that the plaint B schedule pathway is the only pathway for ingress and egress to the plaint A schedule property. It is stated by the Commissioner that there is a padippura at the entrance of the B schedule pathway from the Paikkada road. The Commissioner has reported that the entrance to the plaint A schedule property is through the said padippura and the plaint B schedule pathway. The defendants even though denied the existence of the pathway as described in plaint B schedule, it is admitted by the defendants in their objection that the pathway provided as per the family partition deed No.3007/1960 was for common access to the various residential apartments in the property. The existence of plaint S.A.844 of 2001 7 B schedule pathway is proved by the evidence tendered by PW1 and also Ext.C1 to C3 filed by the Commissioner. The evidence tendered by PW2, one independent witness examined on the side of the plaintiff will also show the existence of the plaint B schedule pathway. The existence of the plaint B schedule pathway is proved by the deposition of PW1 and PW2 and Exts.C1 to C3. Hence, I find that the pathway as mentioned in plaint B schedule is in existence and the issue is found accordingly”. 7. It has come out in evidence that the B schedule pathway and well are in actual existence and that common right of user is provided in the family partition deed No.3007/1960 (Ext.B4) to which 2nd plaintiff and the defendants are all parties. In the partition deed also referring to an earlier partition of 1105 M.E. it is stated that all parties will have the right of user that pathway and well. “................................................................................................... ..................................................................................................” This was not looked into or appreciated by the lower appellate court while setting aside the trial court judgment. S.A.844 of 2001 8 8. The right of way through plaint B schedule pathway is reserved in Ext.B4 partition deed. The learned Munsiff Court, on appreciating the evidence on record found that there is a padippura at the entrance of the plaint B schedule pathway and that vehicular access through the said padippura is impossible and the defendants have no manner of right to obstruct the plaintiffs user of the plaint B schedule pathway for taking goods in headload to the plaint A schedule property. Therefore, the learned Munsiff granted only limited permanent injunction. But, the lower appellate court found that “the evidence would establish that the plaintiffs have obtained right on the pathway under Ext.B4 only to use the pathway for access to the property for the convenience of their residence and not for taking vehicles for any business purpose. The attempt of the plaintiffs is to use the disputed pathway for the business purpose which was not intended under Ext.B4.” Since the right of way is created and granted by Ext.B4 partition deed in general terms without any restriction it should receive a liberal construction consistently with the surrounding circumstances of the case. Therefore, I am of the view that the S.A.844 of 2001 9 finding of the lower appellate court is manifestly unreasonable and unjust in the context of the evidence on record and hence, I am interferring with the unreasonable and unjust finding of the lower appellate court and restore the judgment and decree of the trial court in the interests of justice. 9. Accordingly, this appeal is allowed. The judgment and decree in A.S.No.143/1997 on the file of the II Additional District Court, Kollam is set aside and the judgment and decree in O.S.436/95 on the file of the Additional Munsiff Court, Kollam dated 13.10.1997 is restored and confirmed. Parties are directed to suffer their respective costs in this appeal. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.