IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 RSA.No. 1151 of 2011() ---------------------- AS.81/2008 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.547/1988 of M.C.,PATHANAMTHITTA .................... APPELLANT(3RD RESPONDENT/LR OF THE PLAINTIFF, DECEASED 1ST RESPONDENT ---------------------------------------------------------------------- MATHEW PHILIP;, S/O. MATHEW PHILIP, AGED 50, AMPIYIL HOUSE, SATHIYAM 1ST WAY NORTH FORT GATE, THRIPUNITHURA. BY ADV. SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM RESPONDENT(S): APPELLANT & ADDL. RESPONDENTS 2 & 4/DEFENDANT & LRS OF DECEASED 1ST RESPONDENT/PLAINTIFF ----------------------------------------------------------------- 1. T.P. THOMAS, S/O. PHILIPPOSE, 79 YEARS, THEKKUMKATTIL HOUSE, PUNNAKKADU MURI, MALLAPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA-689652. 2. PENNAMMA PHILIP, W/O. LATE P.M.PHILIP, PADINJATTEDATHUHOUSE, PUNNAKKADUMURI, MULLAPUZHASSERYVILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA NOW RESIDING AT RATNA RAJAL CO-OPERATIVE HOUSING SOCIETY,3-102,1ST FLOOR,M.G. ROAD, KANTIVILLY WEST,MUMBAI-400067. 3. JOHN PHILIP,S/O. LATE P.M.PHILIP, PADINJATTEDATHU HOUSE, PUNNAKKADUMURI, MALLAPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA, NOW RESIDING AT RATNA RAJAL CO-OP. HOUSING SOCIETY,3-102, 1ST FLOOR, M.G.ROAD, KANTIVILLYWEST, MUMBAI-400067. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1151 OF 2011 =========================== Dated this the 17th day of November,2011 JUDGMENT The legal heir of the plaintiff in O.S.No.547/1988 on the file of Munsiff Court, Pathanamthitta is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for permanent prohibitory injunction contending that first respondent has no right over the thodu which lies in between item No.1 and 2 of the plaint schedule properties and he is attempting to trespass into that thodu and also to widen the existing thodu and therefore he is to be restrained by a permanent prohibitory injunction from using the way in between item No.1 and 2 of the plaint schedule property or widening the thodu. Item No.1 of the plaint schedule properties lies to east of item No.2 of the plaint schedule RSA 1151/2011 2 properties. There is a thodu in between item No.1 and 2 of the properties. Property of the respondent lies to the south of item No. 1 and 2 of the plaint schedule properties. All these properties originally belonged to Mathew. Properties were divided under Ext.B1 partition deed. Ext.B1 partition deed shows that the eastern property was allotted to the share of Thomas. The western property was allotted to Mathai and the southern property was allotted to Philipose. Respondent is the son of Philipose. Appellant is the son of Mathai. Son of Thomas to whom item No.1 of the plaint schedule property was allotted transferred that right in favour of the appellant under Ext.A1 assignment deed. Appellant thus claim absolute right title over item No.1 and 2 of the plaint schedule properties. Respondent contended that he has a right of way through the thodu which lies to the north of his property and runs between item No.1 and 2 of the plaint schedule properties towards the north and appellant is not entitled to RSA 1151/2011 3 cause any obstruction to that way. Respondent also sought a decree, preferring a counterclaim for declaration of the right of way by easement of grant and a decree for permanent prohibitory injunction restraining the appellant from causing obstruction to the way. Appellant filed a written statement to the counterclaim contending that the pathway provided in Ext.B1 partition deed is the way lying on the south of the property of the respondent and he has no right to use the thodu which lies in between item No.1 and 2 of the plaint schedule properties. 2. Learned Munsiff on the evidence found that appellant has right, title and possession over item No.1 and 2 of the plaint schedule properties under Ext.B1 and A1 and the disputed thodu lies in between item No. 1 and 2. Learned Munsiff also found that respondent did not establish any right of way to use the thodu and therefore dismissed counter claim and granted a decree for injunction restraining the respondent from using the thodu RSA 1151/2011 4 which lies in between item No.1 and 2 of the plaint schedule properties. Respondent challenged the decree before Additional District Court, Pathanamthitta in A.S.No.81/2008. Learned District Judge on reappreciation of the evidence found that Ext.A1 provides a right of way to all the sharers to use the thodu which was in existence while the properties were divided and the three items were separately allotted to the children of Mathew. Learned District Judge found that respondent is entitled to use the way which lies in between item No. 1 and 2 of the plaint schedule properties and reaches the property of the respondent and it is the way which proceeds towards the north and appellant is not entitled to cause any obstruction. Finding that respondent has a right of easement by grant under Ext.B1 the counterclaim was decreed. A decree for injunction was granted in favour of the appellant restraining the respondent from widening the existing thodu. It is challenged in the second appeal. RSA 1151/2011 5 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that first appellate court did not properly appreciate the relevant recitals in Ext.B1 and Ext.B1 only provides that the thodu which lies in between the two properties allotted to the sharers is convenient to be used as a way and it does not mean that a right of way was granted. Learned counsel argued that when the disputed way lies in between item No.1 and 2 of the plaint schedule properties which were respectively allotted to Mathai and the appellant and the property of the respondent which was allotted to Philipose lies to their north and thodu in between item No.1 and 2 of the plaint schedule properties is not the thodu in between the properties of the respondent and the appellant, and hence first appellate court should not have found that respondent has a right to use the way and therefore the decree for declaration granted in the counterclaim is unsustainable. Learned counsel RSA 1151/2011 6 also argued that in any case in the absence of evidence to prove that the way provided under Ext.B1 was having a width of 4 feet a decree for injunction in respect of 4 feet width of way in between item No.1 and 2 of the plaint shcedule properties should not have been granted. Learned counsel argued that as is clear from Ext.C4 report the way which lies in between item No.1 and 2 was widened unlawfully by encroaching upon the eastern portion of item No.2 of the plaint schedule property and a decree for injunction or declaration of right of way in respect of the encroached portion should not have been granted. 5. Admittedly the property of the appellant and the respondent originally belonged to Mathew. It was divided under Ext.B1 partition deed. Ext.B1 shows that the property of Mathew was divided in such a way that the northern portion was divided into two and the southern portion was allotted to Philipose. The eastern portion was allotted as item No.1 to Thomas and the western portion as item RSA 1151/2011 7 No.2 to Mathai. Later the son of Thomas assigned item No.1 of the plaint schedule property in favour of the appellant under Ext.A1. Appellant obtained the right over item No.2 as the son of Mathai. It is in such circumstances, plaintiff claimed title to item No.1 and 2 of the plaint schedule properties. The right and title of the plaintiff to item No.1 and 2 of the plaint schedule properties is not disputed. Ext.B1 shows that while dividing the property into three and allotting each item to the three sons, it was specifically provided that in between the properties there exist a thodu and it could be used as a way. Though the learned counsel argued that it is only a convenience provided and not a right of way, as rightly found by the first appellate court a reading of Ext.B1 establishes that a right of way was granted thereunder. It is thus clear that while the properties were divided into three, there existed separate thodu in between the three plots separating each other. The area covered by RSA 1151/2011 8 the thodu was not allotted to any of the sharers. Instead it was provided that the thodu can be made use of as a way. It was also not provided that the right was given only to the sharers abutting the thodu. It is thus clear that a right of way was granted over the thodu to all the sharers and it cannot be restricted to only the adjoining owners of the thodu, on either side. In such circumstances first appellate court rightly found that respondent who obtained the right of Philipose over item No.3 of Ext.B1 partition deed is entitled to use the way, which lies in between item No.1 and 2 of the plaint schedule properties. The declaration of right of way by easement of grant is thus perfectly correct. 6. The argument of the learned counsel is that even in that case a right of way could only be in respect of a way having a width of one feet. The argument is that thodu was subsequently widened by the respondent and therefore a decree for injunction in respect of way having a width of 4 RSA 1151/2011 9 feet cannot be granted. Though reliance was placed on Ext.C1 report of the Commissioner, what was reported by the Commissioner is about the widening of the thodu, which lies to the south of item No.2 of the plaint schedule property and not to the east of item No.2 or to the west of item No.1. Therefore based on Ext.C4 it is not possible to hold that the thodu was widened. Ext.C4 report establishes a way having a width of about 4 feet. In such circumstances, the finding of the first appellate court that respondent has a right of way over the said way scheduled in the counter claim and granting a decree for injunction after declaration of the right of way is perfectly correct. On the facts and evidence I find no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006