IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 RSA.No. 1329 of 2009(G) ----------------------------------- (AS.NO.328/2009 OF DISTRICT COURT,KOLLAM, OS.NO.449/2005 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- SURENDRAN UNNITHAN, S/O.BALAKRISHNAN UNNITHAN, VRINDAVAN, AKKOLIL CHERRY, MAYYANAD VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- BALAKRISHNA PILLAI @ PODIYAN PILLAI, S/O.KUNJAN PILLAI, HARITHA, KUNNATHUTHEKKU, KOOTTIKKADA, MAYYANAD, KOLLAM. BY ADVS. SRI.P.B.SURESH KUMAR, SRI.LEO GEORGE, SRI.K.P.SUJESH KUMAR, SRI.K.N.SASIDHARAN NAIR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A. NO. 1329/2009: ORDER ON I.A. NO.3054/2009 IN R.S.A. NO.1329/2009 DISMISSED 06/08/2010. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1329 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2010. JUDGMENT Defendant in a counter claim in O.S. 449 of 2005 is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court in the original suit. 2. O.S. 449 of 2005 was a suit instituted originally for injunction. Later it was amended incorporating the prayer for recovery of prescriptive right of easement over plaint B schedule property. The defendant had entered appearance in the meanwhile and had filed the written statement pointing out that he had absolute right over the pathway as per Ext.B1 document and that the plaintiff had no manner of right to use the same. 3. Probably realising the folly of having made a claim for prescriptive right of easement, the plaintiff filed a petition seeking the right to withdraw the suit with RSA.1329/2009. 2 permission to file a fresh suit. No objection was filed to that petition. It was allowed on costs. Cost was paid and the suit was allowed to be withdrawn with liberty to file a fresh suit. 4. Thereafter the counter claim was proceeded with. In the objection to the counter claim, the plaintiff pointed out that the defendant cannot have exclusive right over plaint B schedule pathway and it is being used by other persons in the locality who are residing nearby including him. It is contended that the counter claimant could permit use of the pathway by others. Infact the contention was that it was a public pathway. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of D.W.1, who was the counter claimant and Exts.B1 to B7 from the side of the counter claimant. Exts.C1, C1(a), C1(b), C2 and C2(a) are the report, mahazar and sketch prepared by the commissioner. On a consideration of the materials before it, the trial court found that the defendant, who filed a counter claim has established his title over plaint B schedule RSA.1329/2009. 3 pathway and decreed the suit as against the defendant. Leaving open the right of other persons who might have right to use the pathway, the appellate court concurred with the trial court. 6. The following substantial questions of law have been raised for consideration in the second appeal: “A. Whether the courts below are justified in giving a decree to the counter claimant by relying on the pleadings of the original plaintiff as admission who was allowed to withdraw the suit without prejudice to file a fresh suit? B. Whether the courts below are justified in granting a decree of injunction with respect to B schedule way without proving its exclusive title and possession? C. Whether the courts below are justified in granting a decree of injunction relying on Ext.B1 document without locating and identifying the property mentioned therein? D. Whether the courts below are justified in finding the B schedule way as the private way of plaintiff without appreciating the fact that the way is used by more than 15 families as public way RSA.1329/2009. 4 and it is maintained by the Panchayat and having street light in the road?” 7. Learned counsel appearing for the appellant pointed out that it is quite unfortunate that the courts below have taken the pleadings of the appellant in the suit filed by him and which was later withdrawn to hold against him in the counter claim. A reading of the judgment will show that the courts below have proceeded on the basis that the plaintiff in the suit has set up a prescriptive right of easement and infact that plea had been given up and that is the reason for withdrawing the suit and the contention in the counter claim was that it was a public way and the defendant, who set up a counter claim cannot claim exclusive right over the pathway. It is also pointed out that going by the B schedule noticed by the commissioner, it could not be said that Ext.B1 document takes in the entire area and this vital aspect has been omitted to be noticed by both the courts below. The attack is that there was no attempt from the side of the courts below to locate the RSA.1329/2009. 5 property claimed by the defendant in the counter claim. Instead a decree has been passed granting far more than what is shown in Ext.B1 document. It is therefore contended that the judgment and decree of the court below are unsustainable in law. 8. Per contra, learned counsel appearing for the respondents pointed out that the defendant had laid exclusive right over the pathway covered by Ext.B1 document. But both the courts below on an erroneous process considered as if the claim was in respect of the entire B schedule. It was not so. The claim was specific regarding the extent of property over which the claim was laid on the basis of Ext.B1 document. The contention of the defendant was that the plaintiff has no manner of right to use the pathway, over which he had exclusive right. It was pointed out that if this court feels that there is mistake in identifying the property, for which the counter claim was made, the matter may be remanded to the lower appellate court leaving open the liberty of the petitioner to agitate RSA.1329/2009. 6 before the court below the portion of the pathway over which he lays exclusive claim. It is also pointed out that the plaintiff has already filed another suit raising various claims. His sole prayer is that his rights may not be prejudiced. 9. The plaint as initially laid in the suit was one for injunction alone. Later it was amended incorporating the prayer for prescriptive right of easement. Probably realizing that the plaintiff had made a fatal mistake, he sought to withdraw the suit. By that time, the counter claim was filed. In the counter claim, the defendant specifically contended that portion of the pathway covered by Ext.B1 document belong exclusively to him and the plaintiff had no manner of right to use that portion of the pathway. He therefore sought for an injunction against the plaintiff. 10. The plaintiff withdrew the suit. But the counter claim was proceeded with. In the counter claim the plaintiff did file his defence. There his stand was that the way involved in the counter claim was a public way used by several residents of the locality including him. RSA.1329/2009. 7 11. A reading of the judgment of the court below will clearly show that both the courts below borrowed earlier pleadings in the plaint, which was allowed to be withdrawn in relation to the prescriptive right of easement and used it against the plaintiff. That one must say is improper and illegal. It was realising the mistake that had been committed that the earlier suit had been sought to be withdrawn by the plaintiff reserving right to file a fresh suit. That was allowed on payment of costs, which was paid. Thereafter the courts below could not have relied on the stand taken in the plaint in the suit, which was withdrawn for the purpose of deciding the counter claim. 12. As rightly pointed out by the learned counsel for the appellant, in the counter claim the stand taken by the plaintiff is that it was a public way and the defendant had no exclusive right over the same. The stand of the defendant on the other hand was that by virtue of Ext.B1 document, he obtained exclusive right over the property and in respect of that portion the plaintiff had no right at all. RSA.1329/2009. 8 13. The commission reports and plans will show that plaint B schedule pathway is having a length of 155 meters and three meter width. Obviously the counter claim does not take in the entire property at all. Ext.B1 takes in only a small portion of the actual and total extent of the pathway. This has been omitted to be noticed by the court below and without realising this, a decree had been granted to the defendant in his counter claim. The decree is clearly unsustainable in law. 14. It is felt that the issue needs reconsideration at the hands of the trial court . In the result, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been sated above. If the defendant feels it necessary, he will be at liberty to seek appropriate amendment to his counter claim. If the parties so wish, they will be allowed to adduce fresh evidence. The court below shall thereafter dispose of the appeal in accordance with law RSA.1329/2009. 9 as expeditiously as possible. The parties shall appear before the trial court on 16.9.2010. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.