IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH OCTOBER 2007 / 18TH ASWINA 1929 RSA.No. 1009 of 2005() ---------------------- AS.55/2002 of ADDITIONAL DISTRICT COURT (ADHOC) FAST TRACK-I, THRISSUR OS.490/1994 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/ APPELLANT/PLAINTIFF: ------------------------------------- BEEVATHU, AGED 49, D/O. KUNJUMUHAMMED, AMBALATHU VEETTIL, PALUVAI DESOM, CHAVAKKAD AMSOM, CHAVAKKAD TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT/RESPONDENT/ DEFENDANT: ------------------------------------------------ KASIM, AGED 50 YEARS, S/O. AMMANATH MUSTHAFFA, PALUVAI DESOM, CHAVAKKAD AMSOM, CHAVAKKAD TALUK. BY ADV. SRI.G.UNNIKRISHNON THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/10/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JUDGMENT In view of order in C.M.Appln.646/05 appeal is dismissed. Sd/-M.SASIDHARAN NAMBIAR, JUDGE. M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1009 OF 2005 =========================== Dated this the 17th day of June,2011 JUDGMENT Plaintiff in O.S.490/1994 on the file of Munsiff Court, Chavakkad is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for injunction in respect of plaint schedule property. Plaint schedule property and the property which lies to its south, admittedly originally belonged to Ummer. In addition to the property belonging to the appellant and the respondent, Ummer was having properties on the west of both the properties. After alienating the said property Ummer was having 10 cents of properties. Under Ext.B1 assignment deed dated 19.4.1989 Ummer assigned the southern 4 and 5/6 cents in favour of the respondent. Subsequently on 15.12.1990 the remaining R.S.A.1009/2005 2 northern 5 and 1/6 cents was sold in favour of the appellant. Appellant claims title to the plaint schedule properties under Ext.A1 sale deed. The suit is for injunction restraining the respondent from trespassing into the plaint schedule property. Admittedly the real dispute between the parties is the right of way claimed by the respondent. Appellant contended that though under Ext.B1 assignment deed Ummer had provided a way towards the north through the eastern portion of the remaining property retained by him at the time of execution of Ext.B1, Ext.A12 agreement to sell the property was entered into by Ummer earlier on 21.1.1987 and in view of the agreement for sale Ummer had no right to impose any burden on the plaint schedule property and therefore the way provided under Ext.B1 is not binding on the appellant and respondent is not entitled to use any portion of the plaint A schedule property as a way. Respondent on the other hand contended that when the property covered under Ext.B1 was assigned by Ummer in his favour, a way was provided towards the R.S.A.1009/2005 3 north and respondent is entitled to use that way and appellant is not entitled to the decree sought for. 2. Learned Munsiff originally dismissed the suit. Appellant challenged the judgment before District Court, Thrissur in A.S.46/1998. Learned District Judge on reappreciation of evidence found that as only a right of way is claimed by the respondent, appellant is entitled to get a decree for injunction in respect of the remaining property even if he is entitled to a right of way. Learned District Judge also found that though Ext.A12 agreement for sale was produced before the first appellate court, no evidence was let in with regard to the said agreement and to find out whether the agreement is in respect of the plaint schedule property, the suit was remanded to the trial court for fresh evidence. Subsequent to the remand no attempt was made to locate and fix the way claimed by the respondent. The suit was dismissed holding that when respondent has a right of way, appellant is not entitled to the decree sought for. R.S.A.1009/2005 4 Appellant challenged the judgment before the District Court, Thrissur in A.S.55/2002. Learned District Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial question of law. Whether, after execution of Ext.A12 the servient owner was competent under law to create an easement by grant, over the servient tenement to effect the right of the purchaser under Ext.A12. 4. Learned counsel appearing for the appellant and respondent were heard. 5. The argument of the learned counsel is that the first appellate court, on appreciation of the evidence found that Ummer the assignor had entered into Ext.A12 agreement to sell the property R.S.A.1009/2005 5 in favour of the appellant in 1987 and put her in possession of the property and that finding is strengthened by the fact that while Ummer sold the southern portion under Ext.B1 sale deed, the northern boundary shown is the property in the possession of the appellant and in such circumstances when the assignor of Ext.B1 had agreed to sell the plaint schedule property and put the property in the possession of the appellant, he is not entitled to create a burden on the plaint schedule property and therefore eventhough Ext.B1 provides a right of way through the eastern portion of the plaint schedule property, respondent is not entitled to use any portion of the plaint schedule property a a way and therefore a decree for injunction is to be granted. 6. Learned counsel for the respondent pointed out that even if Ext.A12 agreement is genuine, Ext.A12 does not show that appellant was put in possession of the property covered under Ext.A12 and Ext.A12 provides that possession will be handed over on execution of the sale deed and Ext.A1 sale R.S.A.1009/2005 6 deed shows that the property was put in the possession of the appellant on execution of the sale deed and therefore the claim of the appellant that she has been in possession of the plaint schedule property before execution of Ext.A1 cannot be accepted. Learned counsel also pointed out that when the assignor under Ext.B1 is bound to provide a way to the property covered under Ext.B1 and a way was provided through the eastern portion of the northern property retained by him, respondent is entitled to use that way and appellant is not entitled to the decree sought for. 7. Irrespective of the question whether Ummer, who entered into Ext.A12 agreement for sale could impose a burden of right of way over that property while executing Ext.B1, when admittedly the properties covered under Ext.A1 and B1 having a total extent of ten cents originally belonged to Ummer and Ummer sold the southern portion of the property under Ext.B1 in favour of the respondent retaining the northern portion, he is bound to provide a way. Learned counsel appearing for the R.S.A.1009/2005 7 appellant pointed out that as seen from Ext.C1 report, there is a way available to the property covered under Ext.B1 from the west, as there is a gap leading to the property of Pathumma. But the question is whether it is a way available as of right. As is clear from Ext.A4 sale deed before Ext.A1 sale deed the western property was alienated by its assignor. What was retained and available with Ummer under Ext.A4 was only ten cents. It is that cents which was assigned under Ext.B1 and A1. Therefore when there is no case that, when the western property was alienated retaining the eastern cents seen in Ext.A4 sale deed, a way was provided through the western property alienated earlier. It cannot be disputed that there should be a way for the ten cents available with Ummer, namely the property covered under Ext.B1 and A1. There is no dispute that the way so available to the said property, was from the north. So long as there is no case for the appellant that there was any way towards the south or towards the east of the ten cents property and when neither Ummer nor R.S.A.1009/2005 8 the respondent could claim a right of way through the western property, as of right, when Ummer assigns the southern half of the ten cents, he is bound to provide a way to the respondent. Even if it is taken that Ummer is not entitled to impose a burden on the property covered under Ext.A1, because of the agreement for sale, as the property was split up by execution of Ext.B1 sale deed, the property so severed should get a way through the remaining property retained by the assignor towards the north. Instead of providing a way by easement of necessity, if the assignor had provided a way towards the north through the eastern portion of the property retained by him, so as to avoid further dispute, the right which would have been even otherwise available to the respondent because of the severence of the property, cannot be defeated on the ground that Ummer is not competent to burden the property. If such a way was not provided, respondent could have still a right of way by easement of necessity through the plaint schedule property. To avoid a claim for R.S.A.1009/2005 9 way,through the centre of the property, in Ext.B1, a way was provided through the eastern boundary. Therefore it cannot be disputed that respondent is entitled to a right of way through the property covered under Ext.A1. It is that way which was provided under Ext.B1 from the eastern portion of the property. Appellant is not entitled to get a decree for injunction restraining the respondent from using the plaint schedule property as a way. 8.As rightly found by the District Judge in A.S.46/1998, appellant is entitled to a decree for injunction in respect of the remaining property. But inspite of the opportunity granted, no attempt was made by any of the parties to identify and locate the way. But based on the data furnished in Ext.C1 report, it is clear that the way available to the respondent, namely for the property covered under Ext.B1, is through the eastern portion of the plaint schedule property. The Commissioner noted a gap of 28 inches on the north eastern corner of the property covered under Ext.B1, as well as a gap at the point where the northern way enters the R.S.A.1009/2005 10 plaint schedule property. Respondent is definitely entitled to a way through that portion. Eventhough there is no data to fix the exact lie of the way, I do not find it in the interest of justice to remand the suit to fix the way as a way could be fixed on the available evidence. It can only be taken that the way available to the property covered under Ext.B1 is a way for convenient ingress and egress. It would be sufficient if the width of the way is fixed at 2 and 1/4th feet. Therefore appellant is entitled to get a decree for permanent prohibitory injunction restraining the respondent from trespassing into the plaint schedule property excluding the way which lies north south having a width of 2 1/4th feet from the eastern boundary of the plaint schedule property. The appeal is allowed in part. The judgment of the Additional District Court, Thrissur in A.S.55/2002 is set aside . The decree in O.S.490/1994 on the file of Munsiff Court, Chavakkad is modified and the suit stands decreed as follows:- Defendant is restrained by a R.S.A.1009/2005 11 permanent prohibitory injunction from trespassing into the plaint schedule property, excluding the way running north, south, having a width of 2 ¼ feet along the eastern boundary of the plaint schedule property. Defendant is entitled to use the way.It is made clear that the defendant shall not cause any obstruction to the peaceful enjoyment of the remaining portion of the plaint schedule property by the plaintiff. Plaintiff shall not cause any obstruction whatsoever if the defendant and his men, using the said way. Parties to bear their respective cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006