IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 RSA.No. 205 of 2008() --------------------- AS.168/2007 of DISTRICT COURT, KOTTAYAM OS.46/2002 of MUNSIFF MAGISTRATE, ERATTUPETTA .................... APPELLANTS : APPELLANTS/PLAINTIFFS: ---------------------------------------------- 1. NUSAIFA SIRAJ, W/O.SIRAJ, ISMAIL PARAMPIL, THIDANADU KARA, ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. AMINA MAJEED, W/O.MAJEED, ISMAIL PARAMPIL, THIDANADU KARA, ERATTUPETTA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS: RESPONDENTS/DEFENDANTS: ---------------------------------------------------- 1. NAZEER, S/O.EESA, THUNDIYIL HOUSE, THIDANADU KARA, ERATTUPETTA VILLAGE, KOTTAYAM DISTRICT. 2. SIRAJ, S/O.VIDWAN, CHEMPU, VARICKANICKAL HOUSE, THIDANADU KARA, ERATTUPETTA VILLAGE, KOTTAYAM DISTRICT. 3. NAUSHAD, S/O.VIDWAN, CHEMPU, VARICKANICKAL HOUSE, THIDANADU KARA, ERATTUPETTA VILLAGE, KOTTAYAM DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.518/2008 IN R.S.A.NO.205/2008 25.2.2008 DISMISSED Sd/- M.Sasidharan Nambiar /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 205 OF 2008 =========================== Dated this the 25th day of February, 2008 JUDGMENT Plaintiffs in O.S.No.46/2002 on the file of Munsiff Court, Erattupetta is the appellants. Defendants are the respondents. Appellants instituted the suit for injunction contending that plaint schedule property exclusively belonged to first plaintiff as per Ext.A1 sale deed dated 16.3.2002 and appellants are residing in the building in the plaint schedule property and property of respondents lies to the south and they are residing therein and there is a Panchayat road by name Ismailparampu road on the north and a pathway having a width of 5 feet starts from the Panchayat road towards the south through the western side of the plaint schedule property and it proceeds from the western side of the property of respondents 2 and 3. It was contended that on 28.3.2002 property having a width of 2 feet and the R.S.A.205/08 2 length of 20 feet lying on the western side of the plaint schedule property was converted as part of the existing old pathway and they have no right to cut open a way through the plaint schedule property and they are to be restrained by a permanent prohibitory injunction and the property which was annexed to the way is to be restored. Respondents resisted the suit contending that the way was having a width of 1 ¾ feet on the southern boundary of the property of the appellants and beyond that the width was 2 ½ feet and it is inclusive of the right to use that pathway respondents purchased the property lying on the southern side of the plaint schedule property and appellants purchased the property from the very same vendor and subsequently they are aware of the pathway provided by the assignor and there was a fence through the eastern boundary of the property to separate the pathway and respondents have no other pathway to reach their property and they have not trespassed into any portion of the plaint schedule property and appellants are not entitled to cause any obstruction to the pathway provided R.S.A.205/08 3 under Ext.B1 assignment deed. Respondents also raised a counter claim for a permanent prohibitory injunction restraining appellants from causing any obstruction to the way. Appellants filed a written statement to the counterclaim contending that the pathway provided in the sale deed is not part of the plaint schedule property and they are using a way having a width of 3 feet lying on the western side of the plaint schedule property and they have no right to cut open a pathway to the western side of the plaint schedule property and the counter claim is to be dismissed. 2. Learned Munsiff on the evidence of Pws. 1 and 2, DW1 and Exts.A1 and A2, B1, C1 to C2(a) dismissed the suit and granted a decree in the counter claim restraining appellants from causing any obstruction to the user of the pathway as marked by the Commissioner in Ext.C2(a) plan which was appended to the decree. Appellants challenged the judgment before the District Court, Kottayam in A.S.168/2007. Learned District Judge on reappreciation of the evidence confirmed the findings of the Munsiff and dismissed the appeal. R.S.A.205/08 4 It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that under Ext.B1 respondents were granted a right of way only over a property having a width of 1 ½ feet to the north of the plaint schedule property and thereafter at a width of 2 ½ feet and towards the south the way so provided is to the western boundary of the property purchased by appellant under Ext.A1 and respondents have no right to encroach upon the plaint schedule property or widen the pathway and courts below therefore should have granted the decree sought for in the suit and should not have granted the decree in the counterclaim. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. Both first appellant and respondents purchased their respective property from the same owner. Under Ext.B1 assignment deed executed on 17.11.1999, respondents obtained the property which R.S.A.205/08 5 lies to the south of the plaint schedule property. Plaint schedule property was subsequently purchased by first appellant on 16.3.2002. The suit was filed within a period of three months from that date contending that respondents have trespassed into the western portion of the plaint schedule property and demolished the compound wall and they have no right to claim any portion of the plaint schedule property and therefore they are to be restrained by a decree for injunction. Respondents on their part claimed a decree for injunction contending that appellants are obstructing the pathway which they are entitled to under Ext.B1. The trial court and first appellate court on appreciating the evidence found that even before the appellants purchased the plaint schedule property under Ext.A1, the way was in existence which was being used by respondents as provided under Ext.B1. Even if the case of appellants is to be accepted and it is taken that respondents have encroached upon more extent of the property of their assignor, than what is provided under Ext.A1, what was purchased by appellants under Ext.A1 is R.S.A.205/08 6 only the right, subject to the right granted under Ext.B1 to the respondents. Evidence establish that the way was in existence even earlier. The case of appellants that the western compound wall was demolished was disbelieved by the courts below, I do not find any reason to reappreciate the evidence. As appellants are not entitled to cause any obstruction to the way available to the respondents under Ext.B1, courts below rightly dismissed the suit and granted a decree in the counter claim. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006