IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 RSA.No. 1087 of 2008() ---------------------- AS.29/1999 of SUB COURT,KOTTARAKKARA OS.22/1995 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- GOPALA PILLAI, AGED 49 YEARS, S/O.KOCHAN PILLAI, RESIDING AT PUTHEN PURAYIL VEEDU, THEVALAPPURAM EAST MURI, PUTHOOR VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------------- 1. CHACKO, S/O.KUNCHANDY, AGED 64 YEARS, RESIDING AT ONATTUVILA PUTHEN VEEDU, THEVALAPPURAM EAST MURI, PUTHOOR VILLAGE. 2. MATHEW, AGED 45 YEARS, S/O.CHACKO, RESIDING AT ONATTUVILA PUTHEN VEEDU, THEVALAPPURAM EAST MURI, PUTHOOR VILLAGE. 3. MARIYAMMA, AGED 38 YEARS, W/O.MATHEW, RESIDING AT ONATTUVILA PUTHEN VEEDU, THEVALAPPURAM EAST MURI, PUTHOOR VILLAGE. BY ADV.VINOY VARGHESE KALLLUMMOOTTIL FOR THE CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No. 1087 of 2008 = = = = = = = = = = = = = = Dated this the 19 th day of November, 2008 JUDGMENT The plaintiff in O.S.No.22 of 1995 on the file of the Munsiff's Court, Kottarakkara is the appellant in this second appeal. The said suit was one for declaration of title and possession and for prohibitory injunction in respect of the plaint schedule property admeasuring 44½ cents. According to the plaintiff, he got the Plaint Schedule Property admeasuring 44½ cents under Ext.A1 settlement deed dated 28.10.1981 executed by his mother Naniamma and the defendants were attempting to cut open a pathway through the eastern extremity of the plaint schedule property so as to gain access to the property situated on the south-eastern side of the Plaint Schedule Property. It was also alleged that the 3rd defendant who is the daughter-in-law of the 1st defendant had her property to the north of the 1st defendant's property and the defendants could have access from the Panchayat road running east-west along the northern boundary of the plaint schedule property as well as R.S.ANo.1087 of 2008 2 the property of the 3rd defendant. 2. The suit was resisted by the defendants contending, inter alia, that there is a pathway through the eastern portion of the plaint schedule property for the purpose of access to the 1st defendant from the panchayat road into his property situated at the south-eastern side of the plaint schedule property and that the attempt of the plaintiff was to get a decree to the extreme prejudice of the 1st defendant and suppressing the pathway passing through the plaint schedule property. 3. The learned Munsiff, after trial dismissed the suit holding, inter alia, that the attempt of the plaintiff was to suppress the existence of the pathway through the eastern portion of the plaint schedule property as alleged by the defendants and that on his own admission, as against 44 ½ cents with regard to which releif was prayed for in the suit, the plaintiff was in possession of only 31½ cents which strengthens the contention of the defendants. The trial court also took note of the fact that eventhough an earlier suit filed by the present plaintiff and his sister as O.S.No.231/1993 seeking perpetual injunction against the defendants was dismissed for default, on the date of filing of the said suit, there existed a pathway along R.S.ANo.1087 of 2008 3 the eastern portion of the plaint schedule property and, immediatly before the visit of the Advocate Commissioner in that case the plaintiff and his sister had destroyed that pathway and the court on being satisfied that there existed a pathway ordered the plaintiff and his sister to restore the pathway to its original position and that was the reason why the said suit was subsequently got dismissed for default. 4. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal before the Sub Court, Kottarakkara as A.S.No.29 of 1999. As per the judgment and decree dated 7.8.08, the lower appellate court also confirmed the dismissal of the suit by the trial court. Hence this second appeal. 5. I heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents/caveators. 6. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- Except alleging that there was a pathway from the plaint schedule property starting from the Panchayat road on the north and the 1st defendant and his family members have been using the said pathway for the past 100 years, there has been no claim R.S.ANo.1087 of 2008 4 for easement nor any declaration claimed with regard to the said pathway. Merely because the plaintiff while in the witness box admitted that as against the 44½ cents held by him under Ext.A1 settlement deed, he is actually in possession of only 31 ½ cents, it does not follow that the defence set up by the defendants about the alleged existence of the pathway is true. On the contrary, the Commissioner deputed by the trial court in this case did not note the existence of a pathway in the suit property but instead, noted the existence of a pathway through the property of 3rd defendant situated to the north of the property of the 1st defendant. In any view of the matter, the defendants having not denied the title of the plaintiff, the suit should have been decreed subject to the right of the defendants over the pathway in question. The dismissal of the suit in its entirety is totally illegal. 7. It is true that the plaintiff's title and possession subject to the right of the defendants over the pathway in question could have been granted. But then the courts below were carried away by the conduct of plaintiffs who did not come to court with clean hands. After himself and his sister together filing the earlier suit, they attempted to obliterate the pathway passing R.S.ANo.1087 of 2008 5 through the plaint schedule property and the court directed them to restore the pathway to its original condition. Thereupon, the said suit itself was got dismissed for default, thereby avoiding an adjudications of the rival contentions of the parties. This mainly weighed with the courts below in non- suiting the plaintiff. The main attempt of the plaintiff was to conceal the existence of the pathway passing through the eastern portion of the plaint schedule property used by the defendants. But when the defendants themselves do not have any dispute regarding the title of the plaintiff over the plaint schedule property and also the exclusive possession of the plaintiff over the plaint schedule property except the area covered by the pathway in question, the suit could have decreed so far as it pertains to the relief of declaration of title and declaration of exclusive possession of the suit property other than the area covered by the pathway. Accordingly, in modification of the decrees passed by the court below, O.S.No.22 of 1995, will stand decreed declaring the title of the plaintiff over the plaint schedule property obtained under Ext.A1 settlement deed and also declaring the possession of the plaintiff over the said property excluding the area covered by the pathway R.S.ANo.1087 of 2008 6 passing through the eastern portion of the plaint schedule property and in respect of which evidence has already been collected in the earlier O.s.No.231/1993 and also in Ext.B1 Re- survey plan. This Second Appeal is disposed of accordingly answering the following substantial questions of law in the affirmative:- 1. Were not the courts below wrong in non-suiting the plaintiff when the defendants did not dispute the title of the plaintiff over the plaint schedule property as also the possession of the plaintiff over the same excluding the area covered by the disputed pathway? 2. Were not the courts below wrong in holding that in view of the right of way claimed by the defendants over a portion of the plaint schedule property, the title and possession of the plaintiff over the plaint schedule property cannot be declared? Dated this the 19 th day of November, 2008. V. RAMKUMAR, JUDGE sj