IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 RSA.No. 607 of 2011(E) ---------------------- AS.329/2006 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1384/2002 of III ADDL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANTS/PLAINTIFFS 1 TO 4 ------------------------------------------------ 1. P.K.VIJAYAKUMAR, S/O.KUNJAN, RESIDING AT NELLIVILA, READARIKATH VEEDU, VENGANOOR VILLAGE, VELLAR, KOVALAM, THIRUVANANTHAPURAM. 2. P.K.SUKESAN, S/O.KUNJAN, RESIDING AT -DO- -DO-. 3. V.VALSLA, D/O.KUNJAN, RESIDING AT -DO- -DO-. 4. P.K.LALITHA, D/O.KUNJAN, RESIDING AT -DO- -DO-. BY ADV. SRI.D.SAJEEV RESPONDENT(S): RESPONDENTS/DEFENDANTS 1 TO 4: --------------------------------------------- 1. K.VIKRAMAN, S/O.KOCHURAMAN, RESIDING AT NELLUVILAVEEDU, VELLAR, KOVALAM, THIRUVANANTHAPURAM, NOW RESIDING AT VRINDAVAN, RIJU MANDIRAM, AP.8/288, AZHOOR PANCHAYAT, THONNACKAL COLONY, CHIRAYINKIL. 2. CHANDRAN, S/O.KOCHURAMAN, RESIDING AT NELLUVILAVEEDU, VELLAR, KOVALAM, THIRUVANANTHAPURAM. 3. MANOHARAN, S/O.KOCHURAMAN, RESIDING AT NELLUVILA VEEDU, VELLAR, KOVALAM, THIRUVANANTHAPURAM. 4. S. SOMAN RESIDING AT NELLUVILA EDATHATTU VEEDU, VELLAR, KOVALAM, THIRUVANANTHAPURAM. ADV. SRI.S.JIJI FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.607 of 2011 ............................................ DATED THIS The 25th DAY OF AUGUST, 2011 JUDGMENT Plaintiffs in O.S.1384 of 2002 on the file of III Additional Munsiff Court, Thiruvananthapuram are the appellants. Respondents are the defendants. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property, contending that they are attempting to construct a pathway through the southern portion of the plaint schedule property and they have no right to do so. Respondents 1, 3 and 4 resisted the suit contending that the suit was instituted on the failure of his sister Devaki to get a decree for injunction in O.S.2889 of 1990. It was contended that description of the plaint schedule property is not correct and on the western side of the plaint schedule property lies Thiruvananthapuram-Vizhinjam main road and the entire property towards the east slopes from west to east and the property of the appellants lies about 7-8 feet on a lower level from the western main road and on the east of the property of RSA 607/11 2 the appellant is the property of Devaki, the wife of Raju and the said Raju is the brother of the appellants and there exist an old pathway reaching the western main road, through the property of the appellant and Devaki and there was an old building in the property of Devaki and a new terraced building was constructed 12 years back and a sliding gate was put up on the south- western corner of the property and the property of respondents is on the eastern side of Devaki's property and there are many other persons residing towards the east and from time immemorial there was a public way in existence through the southern side of the property of Devaki which reaches the western main road and appellants are attempting to restrain the respondents from using the road and they have no right to do so. 2. Learned Munsiff on the evidence of Pws 1 to 3, DW1, Exts.A1 to A4, B1 to B4, C1 and C1(a), dismissed the suit holding that there exist a way through the southern side of the plaint schedule property and the way was upheld in O.S.2889 of 1990, though appellants were not parties. As evidenced by Ext.B6 and B7, copy of the decree and judgment in O.S.2889 of 1990, the appellants are therefore not entitled to a decree for injunction. RSA 607/11 3 Appellants challenged the decree and judgment before Additional District Court-II, Thiruvananthapuram in A.S.329 of 2006. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants would argue that courts below did not appreciate the evidence in the proper perspective. It was pointed out that the plaint schedule property belonging to the appellants lies immediately to the east of the western public road and it is lying on a lower level and to enable the appellants to reach their property, a way has been formed from the western road to the plaint schedule property and to the east of the plaint schedule property is the property of the sister in law of the appellants by name Devaki and being the sister in law, appellants permitted her to use that way and there is no public way passing through the plaint schedule property and to the south of the property of the appellants is petrol bunk and there does not exist a pathway as claimed by the respondents through the southern boundary of the plaint schedule property and the finding of the courts below is not correct. Learned counsel RSA 607/11 4 argued that the courts below wrongly appreciated the evidence of PW1 as an admission about existence of a way through the southern side of the plaint schedule property, when what was deposed by PW1 was that there exists a way to the plaint schedule property, which is a private way, from the western public road and it cannot be taken as an admission about the existence of a way through the southern boundary of the plaint schedule property. Learned counsel also argued that though courts below relied on Ext.B6 and B7, the decree and judgment in O.S.2889 of 1990, appellants were not parties to that suit and the plaint schedule property therein was the property of Devaki which lies to the east of the plaint schedule property herein and the question whether there exists a way through the plaint schedule property was not raised or considered in that suit and therefore based on Ext.B6 and B7, courts below should not have found that there exists a way through the plaint schedule property. Learned counsel would argue that on the evidence, when there is no evidence to prove that a public pathway passes through the plaint schedule property, a decree for permanent prohibitory injunction should have been granted as sought for. RSA 607/11 5 4. Appellants instituted the suit without admitting that there exists a way from the western road and proceeding towards the east of the plaint schedule property, or contending that though a way exist from the western public road to the plaint schedule property, it is only a private way, alleging that respondents who are persons in possession of the property which lies further to the east of the plaint schedule property, are attempting to carve out a way through the southern side of the plaint schedule property. The property which lies immediately to the east of the plaint schedule property belongs to Devaki, who is admittedly the wife of Raju, the brother of appellants. The fact that Devaki instituted O.S.2889 of 1990 in respect of the property which is to the east of the plaint schedule property against the respondents seeking a decree for injunction and the respondents/defendants in that suit in turn sought a counter claim for removal of the obstruction caused to the way passing through the property of Devaki, cannot be disputed in the light of Ext.B6 judgment and B7 decree. The contention raised by the respondents in that suit was that there exist a public way which was obstructed by Devaki, the plaintiff in that suit. The public RSA 607/11 6 way claimed is a way which starts from the east and reaches the western public road. Though appellants were not parties to O.S.2889 of 1990, it cannot be disputed that the way claimed in that suit by the respondents, is the very same way now being claimed and the disputed way claimed in the present suit is part of the way claimed in that suit. Courts below were therefore perfectly justified in relying on Ext.B6 and B7 to find the existence of a way being used by respondents and others. 5. The admission of first appellant as PW1 has to be appreciated in this background. Though the learned counsel argued that admission of PW1 is only on the existence of a way from the western road which reaches the house of the appellants in the plaint schedule property, on the evidence, I cannot accept the submission. PW1, at the time of evidence admitted that the way leads to the property of Devaki, though it was contended that appellants permitted Devaki to use the way because of their relationship. When the court under Ext.B6 and B7 already upheld the right of way through the property of Devaki and that way cannot be used without using the way passing through the southern side of the plaint schedule property to reach the RSA 607/11 7 western road, as rightly found by the courts below, suppression of the existence of the way is definitely a ground to non-suit the plaintiff. 6. Moreover, in spite of the contention raised by respondents that there exist a way through the south of the plaint schedule property, appellants have not taken out a Commission to demarcate the plaint schedule property with reference to their title deed. Evidently, it can only be for the reason that if a commission was taken out, it would only strengthen the case of the respondents. When appreciating the entire evidence in the proper perspective, I do not find any reason to interfere with the refusal of the courts below to exercise the discretionary jurisdiction in favour of the appellants. As no substantial question of law is involved, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk