IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 SA.No. 902 of 1996(G) ------------------------------- (AS.NO.3/1994 OF PRL.SUB COURT,KOTTAYAM, OS.NO.12/1991 OF MUNSIFF'S COURT, CHANGANACHERRY) .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 TO 3: ------------------------------------------------------------------------ 1. P. GOPINATHAN NAIR, SON OF RAMAN NAIR, KURUMBIKULATHU HOUSE, CHAMPAKKARA, KARUKACHAL, CHANGANACHERRY. 2. PARUKUTTY AMMA, WIFE OF GOPINATHAN NAIR, DO. 3. SUSEELA G. NAIR, WIFE OF RADHAKRISHNA PILLAI, -DO- -DO-. BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR. RESPONDENTS/RESPONDENTS/PLAINTIFFS & 4TH DEFT.: ------------------------------------------------------------------------------------- 1. THRESSIAMMA, WIFE OF KORACHAN, ELANJICKAL HOUSE, CHAMPAKARA, KARUKACHAL.P.O., CHANGANACHERRY. 2. RAGHAVAN, SON OF KRISHNAN, RESIDING AT BUDHAKUSHITHAKADIYIL, KOONENICKAL CHAMPAKKARA, KARUKACHAL, CHANGANACHERRY. 3. VIJAYAKUMAR, SON OF GOPINATHAN NAIR, MILITARY SERVICE, KURUMBIKULATHU HOUSE, CHAMPAKARA, KARUKACHAL, CHANGANACHERRY. R1 & R2 BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010, ALONG WITH SA NO. 903 OF 1996,THE COURT ON 05/08/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 902 & 903 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2010. JUDGMENT Two suits, namely O.S. 12 of 1991 and O.S. 631 of 1990 were disposed of by a common judgment. While O.S.12 of 1991 was decreed, O.S. 631 of 1990 was dismissed. The plaintiffs in O.S. 631 of 1990, who are the defendants in O.S. 12 of 1991, have preferred these appeals. The parties and facts are hereinafter referred to as they are available in O.S. 631 of 1990, as that appears to have been treated as the leading case. 2. Both suits are for permanent prohibitory injunction. Both the suits relate to the right of a way, running through the property owned and possessed by the plaintiffs in O.S. 631 of 1990. The plaintiffs in O.S. 631 of 1990 claims to have obtained plaint item Nos. 1, 2 and 3 by partition deed No.337/89. The three properties lie within well defined boundaries. The S.A.902 & 903/1996. 2 defendant's property is situated on the eastern side of the plaint schedule properties. The allegation was that the plaintiffs have learnt that the defendant is making preparations to cut open a new pathway through the plaint schedule properties. He has no right to do so and hence the suit. 3. In the written statement filed by the defendant, it is contended that the suit is bad for non-joinder of necessary parties and that the defendant was not the true owner of the properties. The properties lying on the eastern side of the plaint schedule property belongs to his wife. It is also contended that there are two Panchayat roads along the east and west of the plaint schedule properties and there is a connecting road running through the properties owned and possessed by the plaintiffs. That has been in existence for a long time and people have been using the said pathway. The allegation that the defendant is trying to cut open a new pathway is without any basis. On the basis of these contentions, he prayed for a dismissal of the suit. S.A.902 & 903/1996. 3 4. In O.S. 12 of 1991 the defendant in O.S. 631 of 1990 along with another person laid the suit for permanent prohibitory injunction complaining about the attempt on the part of the defendants to cause obstruction to the use of pathway, which according to them runs through the property connecting the two Panchayat roads on the east and west. 5. The defendants resisted the suit by pointing out that there was no such way. 6. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and the documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had D.Ws. 1 to 6 examined and Exts. B1 to B5 marked. Exts.C1 and C2 are the commission reports in the two suits. 7. On an appreciation of the evidence in the case the trial court came to the conclusion that the allegations in the plaint in O.S.12 of 1991 has been established, i.e. there is a pathway running through the property owned by the defendants in the said suit and that they have no manner of S.A.902 & 903/1996. 4 right to obstruct the use of the same by the plaintiffs and others. Accordingly, that suit was decreed. Consequently O.S. 631 of 1991 was dismissed. 8. The aggrieved persons carried the matter in appeal as A.S.3 of 1994 and A.S. 4 of 1994 before the Sub Court, Kottayam. The said court, on a consideration of the materials before it, concurred with the trial court and dismissed the appeals and hence the second appeals. 9. The following questions of law are seen formulated in the Memorandum of Second Appeal: “A. Whether a suit is maintainable for a decree of permanent injunction alone not to obstruct the right of way without a prayer for relief of declaration of prescriptive right of way or for a declaration that it is a public way? B. When the plaintiffs get title to properties only in 1975 and 1976, whether a suit is maintainable in 1991 based on a prescriptive right of way? C. When the case of use of a pathway is claimed to be by permission of the owner, whether such a person is entitled to a prescriptive right of S.A.902 & 903/1996. 5 way of easement which can be acquired only by the use of the way as of right for 20 years or more? D. Whether a right of way by prescription could be acquired by using a pathway through a property which is not fenced or enclosed by compound wall.” 10. Learned counsel appearing for the appellants pointed out that it was quite unfortunate that the courts below have not addressed themselves to the questions that really arose for consideration. Attention was drawn to the fact that the two commission reports are mutually contradictory and inconsistent and under those circumstances the trial court ought to have remitted the reports to the respective commissioners and asked them to file a proper report with a sketch. Learned counsel also contended that it is surprising to note that in a suit of this nature, the commissioners thought it unnecessary to prepare sketch and file it in court. Learned counsel also pointed out that both the courts below have not cared to S.A.902 & 903/1996. 6 read the pleadings in the case and have been carried away by the fact that there is a way running through the property of the appellants. The courts below have not adverted as to what exactly was the nature of the rights claimed by the plaintiffs in O.S. 12 of 1991 and without noticing that, a decree has been passed. According to learned counsel, the judgments and decrees are unsustainable both on facts and in law. 11. Learned counsel appearing for the respondents on the other hand tried to support the judgments of the courts blow. But he found it difficult to meet the argument regarding two contradictory reports by the commissioner and the lower courts not adverting to the pleadings in the case. However, he pointed out that both the courts have entered a finding that there exists a pathway running through the property of the plaintiffs and that is a question of fact. The lower appellate court, which is the final court on facts has accepted the case put forward by S.A.902 & 903/1996. 7 the plaintiffs in O.S.12 of 1991 and no grounds are made out to interfere with the said finding. 12. It is true that there is a concurrent finding against the appellants. But unfortunately there is a total mess. As rightly pointed out by the learned counsel for the appellants, there are two commission reports. The courts below deputed a commissioner in O.S. 631 of 1990 and also in O.S. 12 of 1991. Commissioner in O.S. 631 of 1990 categorically says that there is no pathway as alleged by the defendant in the said case. While the commissioner, who was deputed in O.S. 12 of 1991 says that there does exist such a pathway as alleged in O.S. 12 of 1991. 13. In the light of the mutually contradictory reports, the court should have remitted both the reports to the commissioners and asked them to prepare and file a proper report and plan so as to enable the court to locate the existence of the alleged pathway. That was not done and that has caused much confusion in deciding the case. S.A.902 & 903/1996. 8 14. Both the courts below were guided by the oral evidence in the case. It is true that supporters of each group speak in respect of the respective group and it would appear that since the number of witnesses supporting the plaintiffs in O.S. 12 of 1991 out-numbered the number of witnesses in O.S. 631 of 1990, the decision went in favour of the plaintiffs in O.S. 12 of 1991. 15. It may be worthwhile to note the pleadings in the case. In O.S. 631 of 1990, the plaintiffs had categorically asserted that there was no pathway running through their property and that the defendant in that case was trying to cut open a pathway through the plaint schedule property. The defendant replied by pointing out that there are two Panchayat roads on the east and west and there is a road connecting the two Panchyat roads which runs through the property of the plaintiffs also. It would appear that going by the tone in the written statement, a prescriptive right of easement is being claimed, even though it is not specifically claimed that the claim is one of prescriptive right of S.A.902 & 903/1996. 9 easement. It is also contended in the written statement that the people are using the way to go from the Panchayat road on the east to the Panchayat road on the west and vice versa. It is here that the averments in the plaint in O.S. 12 of 1991 assume importance. One must remember that that is a suit filed by the defendant in O.S. 631 of 1990 along with another person. There, the averment is that plaint items 1 and 2 are the properties owned by the plaintiffs in the case. The averment is that there is a pathway running in between the property and that runs to the western side and leads to the Panchayat road on the west. What is interesting is that in the plaint it is specifically stated that the properties of the defendant in the said case are situate on either side of the pathway and the defendants are attempting to reduce the pathway into their possession. There is nothing in the plaint to show that the portion of the property through which the pathway is running belongs to the defendants or that they are in possession of the same and the plaintiffs have right to use the pathway. It is clear from a reading of the S.A.902 & 903/1996. 10 plaint that the assertion is that there is a road running along towards west and ending on the Panchayat road, which was used by the people of the locality. There is no averment regarding prescriptive right of easement in O.S. 12 of 1991. Of course, it is stated that the pathway has been in existence for a long time and the people are using it openly, peacefully and continuously. What is significant is that the plaintiffs had not conceded that the pathway runs through the property claimed by the defendants in the case. 16. The courts below seems to be greatly impressed by Exts.B1 and B5. Ext.B1 is the sale deed in favour of the first plaintiff in O.S. 12 of 1991 and Ext.B5 is the gift deed in favour of the second plaintiff. True that northern boundary of Ext.B1 is shown as the pathway having ten links width and the southern boundary in Ext.B5 document is shown as the same way, that is of ten links. According to both the courts below since there is such a recital in both the documents, it must follow that the pathway extends further towards west and runs through the S.A.902 & 903/1996. 11 property of the plaintiffs in O.S. 631 of 1990. One fails to understand how does this follow. The plaintiffs in O.S. 631 of 1990, who are the defendants in the other suit had specifically asserted that there is no pathway running through their property and that the defendant in the said suit is trying to cut open a pathway. 17. Ext.C1 commission report shows that there is a pathway starting from the western panchayat road and ends in the steps of the house of the plaintiffs in O.S. 631 of 1990. 18. A careful reading of Ext.B1 shows that they have a pathway on the eastern side also. Whatever that be, there is nothing to show that there is a pathway as such running through the property of the plaintiffs in O.S. 631 of 1990. Any how, it has not been located at all properly. The nature of the claim put forward by the plaintiffs in O.S. 12 of 1991 has also not been properly appreciated and considered by the courts below. As already noticed, both the courts below proceeded on the assumption that what is claimed is S.A.902 & 903/1996. 12 prescriptive right of easement. A reading of the plaint in O.S. 12 of 1991 does not appear to reveal such a right. At any rate, it is felt that the matter requires reconsideration. 19. The pleadings have been misconstrued and there is no proper evidence except the oral testimony of some of the witnesses, which supported the averments and the allegations taken by both the groups. It is necessary to obtain a proper report and plan by deputing the same commissioner or commissioners to ascertain the lie of the properties or the exact location of the ways available to the parties so that one can ascertain whether the claim made by the plaintiffs in O.S. 12 of 1991 is true. In the result, these appeals are allowed, the judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 3.9.2010. Being suits of the year 1990 and 1991, the trial court may make every endeavour to dispose S.A.902 & 903/1996. 13 of the suits as expeditiously as possible at any rate within a period of six months from the date of appearance of the parties. There will be no order as to costs. Office shall send back the records forthwith. P. BHAVADASAN, JUDGE sb.