IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 SA.No. 119 of 1995(E) ------------------------------ AS.132/1989 of IST ADDL. DISTRICT COURT, KOLLAM OS.376/1986 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/RESPONDENT 1/ DEFENDANT 1. ------------------ TRAVANCORE DEVASWOM BOARD, REP.BY THE DEVASWOM BOARD SECRETARY, TRAVANCORE DEVASWOM BOARD OFFICE, THIRUVANANTHAPURAM. BY ADV. SRI.D.SREEKUMAR, SC, TDB SRI.D.SREEKUMAR, SC, TDB RESPONDENTS/ APPELLANT/ PLAINTIFF ----------------------- 1. K.SUMUKHYKUTTY, LAKSHMI VILASOM BUNGLOW CONTONMENT WARD, KOLLAM VILLAGE, REP.BY HER POWER OF ATTORNEY HOLDER, K.BHARATHIKUTTY OF DO. DO. ADDL. R2 IMPLEADED 2. M.K.SUNDARAN PILLAI, S/O. MADHAVAN PILLAI, AGED 47, RESIDING AT SOBHANA MANDIRAM, ASRAMATHUCHERRY, KOLLAM EAST VILLAGE, KOLLAM. THE ABOVE RESPONDENT IS IMPLEADED AS ADDL. R2 AS PER ORDER DT. 5.8.03 ON IA. 572/03. BY ADV. SRI.P.B.SURESH KUMAR - ADDL. R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 119 OF 1995 =========================== Dated this the 10th day of March, 2008 JUDGMENT First defendant in O.S.376/1986 on the file of Munsiff Court, Kollam is the appellant. First respondent is the plaintiff. First respondent instituted the suit for injunction restraining appellant from constructing a compound wall enclosing plaint B schedule property so as to cause obstruction to the right of way over plaint B schedule way, used by first respondent and the tenants occupying the shops in the building in the plaint A schedule property. The suit was instituted through the power of attorney holder of first respondent. Her case was that plaint A schedule property was obtained under Ext.A1 settlement deed of 1953 and she has been in possession of the property and the shop buildings in the plaint A schedule property are occupied by tenants and plaint B schedule property is a S.A.119/1995 2 puramboke land which lies to the north of plaint A schedule property and there is a road leading from Beach road to Bensigar Hospital to the north of plaint B schedule way and the only access to plaint A schedule property is through B schedule property and it is being used to reach plaint A schedule property for the last 60 years and first respondent has a right of easement over plaint B schedule property and appellant is not entitled to enclose plaint B schedule property by constructing a compound wall so as to obstruct the use of plaint B schedule property as a way. First respondent contended that in 1982 appellant claiming that they have kuthakapattom lease attempted to put up a compound wall and first respondent issued a notice to appellant Board not to cause obstruction to the way and it was given up and just before the institution of the suit first respondent came to know that appellant had invited tenders for construction of the compound wall. It was contended that appellant Board has no right to obstruct the way. First respondent sought S.A.119/1995 3 a decree for injunction restraining appellant from putting up a compound wall so as to obstruct the right of way through plaint B schedule property, to the plaint A schedule property. 2. Appellant resisted the suit contending that plaint B schedule property is not a puramboke land but property belonging to appellant under kuthakapattom lease of 1954 as per R- Dis.13400/50/CS dated 20.4.1954. It was contended that the property covering 14 cents in Survey No.8357/A4 and 6 cents in Survey No.8357/A5 was obtained on kuthakapattom lease and there is an idol of Lord Ganapathy within the six cents which lies to the south of the way leading to Bensigar Hospital and there is Venugopala Swamy temple in the 14 cents which lies to the north of the Bensigar hospital road. It was also contended that properties obtained on kuthakapattom lease were handed over to the appellant by the Village Officer after preparing a sketch and mahazar and since then appellant is in possession of the property and first respondent has no easement S.A.119/1995 4 right of way over plaint B schedule property and as the properties lying vacant, Board decided to put up a boundary leaving a width of 9 meters and 10 cms on the east touching the compound wall of Bensigar hospital for using it as a way and it is to protect the property, the idol, compound wall is being put up and first respondent is not entitled to the decree sought for. 3. Learned Munsiff on the evidence of Pws 1 to 3, DW1, Exts.A1 to A4, Exts.B1 to B3(j), Exts.C1 & C2 dismissed the suit holding that first respondent did not establish a right of way over plaint schedule property and appellant in their written statement itself made it clear that a portion having a width of nine meters and 10 cms of plaint B schedule property is left for the way. Aggrieved by the dismissal of the suit, first respondent filed A.S.132/1989 before District Court, Kollam. Learned Additional District Judge on reappreciation of evidence found that first respondent has been using plaint B schedule property and first respondent being in S.A.119/1995 5 possession of that property, is entitled to sue for injunction. Finding that first respondent has been in possession of plaint B schedule property, judgment of the trial court was set aside. A decree for injunction was granted restraining appellant from putting up a compound wall or any structure so as to cause obstruction to the right of way over the plaint B schedule property to the plaint A schedule property. First defendant filed this appeal challenging that judgment. Second appeal was admitted formulating the following substantial questions of law. 1. Whether first appellate court was justified in granting a decree for permanent injunction restraining defendants from enclosing plaint B schedule property, without the plaintiff establishing any right over the said property. 2. Whether the first S.A.119/1995 6 appellate court was justified in holding that plaintiff is in possession of plaint B schedule property, when plaintiff herself has no such case in her pleadings and in the evidence. 4. Learned counsel appearing for appellant and respondents were heard. 5. The suit was instituted for permanent prohibitory injunction contending that plaint A schedule property belongs to first respondent and plaint B schedule property which lies to the north of plaint A schedule is a puramboke land and appellant has no right to enclose plaint B schedule property so as to cause obstruction in using plaint B schedule property as a way. What was contended in the plaint was that plaint B schedule property was used as a way to plaint A schedule property for the last 60 years. There is no case in the plaint that respondent has been in possession of the plaint B schedule property. S.A.119/1995 7 Even when PW1, the power of attorney holder of first respondent was examined, there was no case for first respondent that plaint B schedule property is in the posssession of first respondent. The only case was that plaint B schedule property was used as a way to reach the plaint A schedule property. The trial court on evidence found that first respondent did not establish any right of way. First appellate court did not differ with that finding and did not find that first respondent has a right of way over plaint B schedule property. On the other hand, it was found that first respondent is in possession of plaint B schedule property and a person in possession is entitled to file a suit for injunction and as the attempt of appellant/defendant is to enclose the property by constructing a compound wall, it was held that respondent is entitled to a decree for injunction. As rightly argued by learned counsel appearing for appellant when first respondent herself has no such case either in the pleading or at the time of evidence, first appellate court was S.A.119/1995 8 not at all justified in projecting a new case which the party did not have. Therefore on that short point, it is to be found that the finding of the first appellate court is not sustainable. 6. First respondent obtained plaint A schedule property under Ext.A1 settlement deed. It was the B schedule property therein which was settled in favour of first respondent. As per Ext.A1, the property which was obtained by first respondent lies to the south of hospital road, to the east of Beach road and to the north of engineer's puramboke land and to the west of a way and mission compound. Ext.A1 also shows that a way which runs through the property east west, was set apart for the use of all the sharers to whom the different items were settled thereunder. Ext.A1 establish the property settled in favour of first respondent was having beach road as its western boundary and another way as eastern boundary and puramboke land in the possession of the engineers on the south. In the light of Ext.A1, first respondent cannot be heard to contend that there is S.A.119/1995 9 no other way available to the property settled in her name under Ext.A1 when a separate way is provided under Ext.A1 and the easter boundary is a way and the western boundary is beach road. 7. First respondent has no case that she has any right title or possession to plaint B schedule property. Though it was contended in the plaint that plaint B schedule property is a puramboke land and appellant claims kuthakapattom lease, at the time of evidence in the light of Ext.B1 mahazar and B2 plan which establish the kuthakapattom lease and also that property was handed over to the possession of appellant Devaswom by the Village Officer, right and title of appellant to plaint B schedule property was not disputed. It was proved that plaint B schedule property belongs to appellant Devaswom. What was claimed by first respondent was only a right of way. Eventhough it was claimed that first respondent has easement right of way over plaint B schedule property, what exactly is the right of way claimed is not clear from the plaint. Though it was contended that S.A.119/1995 10 plaint B schedule property is used as a way for the last 60 years and there is no other access to plaint A schedule property, the necessary ingredients constituting a right of easement by prescription as provided under section 15 of Easement Act was not pleaded. There was no pleading that plaint B schedule property was being used openly, peacefully and without interruption and that too as of right for more than the requisite period. The only pleading was that there is no other way available to the plaint A schedule property and plaint B schedule property is being used for the last 60 years. These pleadings are insufficient to constitute a plea of right of easement. When Ext.A1 provides that a way was provided for the use of all sharers and the property allotted to first respondent is having road frontage on the west and a way on the east,a right of way by easement of necessity cannot be claimed. In the absence of necessary ingredients constituting a plea for easement of prescription, that plea also will not lie. Unfortunately first S.A.119/1995 11 appellate court did not consider these material aspects. When PW1 was examined it was specifically asked what right first respondent is claiming over plaint schedule property, he claimed that out of five cents constituting plaint B schedule property, first respondent is claiming a right of way. When PW1 was specifically asked where exactly the right of way is claimed over the plaint B schedule property, the answer given by PW1 was that the way is on the eastern extremity of five cents. Therefore even if appellant was using any portion of plaint B schedule property to reach plaint A schedule property, the right if any is to be confined to that particular portion of plaint B schedule property and not the entire plaint B schedule property. 8. When the necessary ingredients of a right of way by easement of prescription was not pleaded or proved, first respondent is not entitled to claim a decree based on right of way over plaint B schedule property. As first respondent did S.A.119/1995 12 not establish any right over plaint B schedule property she is not entitled to the decree granted by the first appellate court. The trial court itself had taken note of the statement of the appellant Devaswom in the written statement that to provide a way, on the eastern side of plaint B schedule property a portion having a width of 9 meters and 10 cms will be left while constructing the compound wall which could be used by first respondent. The appeal is allowed. The decree and judgment granted by District Court, Kollam in A.S.132/1989 set aside. O.S.376/1986 on the file of Munsiff Court, Kollam stands dismissed. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006