IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 RSA.No. 937 of 2008() --------------------- AS.57/2001 of DISTRICT COURT, PATHANAMTHITTA OS.503/1997 of MUSNIFF COURT,ADOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------- 1. THOMAS CHACKO, MALAYIL PADINJATTETHIL, E EDATHITTA MURI, KODUMON VILLAGE, ADOOR TALUK. 2. KOCHUKUTTY CHACKO, MALAYIL PADINJATTETHIL, EDATHITTA MURI, KODUMON VILLAGE, ADOOR TALUK. 3. GEORGE CHACKO, MALAYIL PADINJATTETHIL, EDATHITTA MURI, KODUMON VILLAGE, ADOOR TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI. A.R. DILEEP RESPONDENT(S): RESPONDENTS/PLAINTIFFS --------------------------------------------------- 1. KOCHUMMEN KUNJUMON, PLAVILAYIL, EDATHITTA MURI, KODUMON VILLAGE, ADOOR TALUK. 2. THANKAMMA KUNJUMON, PLAVILAYIL, EDATHITTA MURI, KODUMON VILLAGE, ADOOR TALUK. 3. TIJUMON, PLAVILAYIL, EDATHITTA MURI, KODUMON VILLAGE, ADOOR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ===================== R.S.A. No. 937 of 2008 ================ Dated this the 1st day of December, 2008. JUDGMENT The defendants in O.S. No. 503 of 1997 on the file of the Munsiff's Court, Adoor are the appellants in this Second Appeal. The said suit instituted by the respondents herein was one for injunction both mandatory and prohibitory. 2. The case of the plaintiffs can be summarised as follows:- The 2nd plaintiff is the wife of the 1st plaintiff and the 3rd plaintiff is their son. Defendants 2 and 3 are the brothers of 1st defendant. Plaint A schedule property admeasuring 60 cents was allotted to the 1st plaintiff under Ext.A1 partition deed dated 12.08.1994. Thereafter, the 1st plaintiff constructed a residential building therein 21 years ago and the plaintiffs are residing there with their family. The property lying to the south of the plaint A schedule property admeasuring 18 cents was purchased by plaintiffs 2 and 3 as per the registered sale deed dated 19.12.1989 and they are in absolute possession and enjoyment of the same. The plaint B schedule property is the 60 cents of land belonging to the defendants. The plaint C R.S.A. No. 937/2008 : 2: schedule strip of land is the pathway running north-south in between the plaint A schedule property and the plaint B schedule property. The plaint C schedule property proceeds from the Kakkathanathu Harijan colony road running east-west on the south and proceeds towards the north from the Idathitta junction and eventually joins the Prabhathu Harijan colony road. The Kakkathanathu Harijan colony road joins the main road running north- south forming the eastern boundary of the plaint B schedule property belonging to the 1st defendant. The plaint C schedule property is a way used by the public for the past several years. While so, the defendants put up a compound wall at the western boundary of the plaint B schedule property in such a way as to reduce the width of the plaint C schedule property. Hence the suit for mandatory injunction directing the defendants to restore the said segment of the plaint C schedule property after demolishing the compound wall and for a perpetual injunction restraining the defendants from trespassing into any portion of the plaint C schedule pathway. R.S.A. No. 937/2008 : 3: 3. The suit was resisted by the defendants contending inter alia as follows:- The claim of the plaintiffs that the plaint C schedule way has a width ranging from 12 to 14 feet is false. The width of the way at the beginning portion is only 12 feet and it is 8 feet at the northern end. The user of the plaint C schedule way both by the plaintiffs and their predecessors is admitted. But the said way did not have the width as alleged by the plaintiff. The defendants permitted the plaintiffs to use some portion of their property on the west for the purpose of taking materials by lorries at the time of construction of the plaintiffs' residence. It was a temporary arrangement. After the building was constructed the permission was withdrawn and a ridge was constructed at that portion with mud. It was impossible to take lorries through that portion without the consent of the defendants. Even now tempo, car etc. are taken through the way. The alleged encroachment into the plaint C schedule way is not correct. The plaintiffs had filed a complaint before the Sub Divisional Magistrate, R.S.A. No. 937/2008 : 4: Adoor and the matter was resolved in the Taluk Sabha. There is no encroachment on the plaint C schedule way as alleged. The cause of action alleged is not true. The suit may be dismissed. 4. The trial court issued an ex parte commission at the instance of the plaintiff. The commissioner submitted Exts.C1 report and C1(a) sketch. Going by Ext.C1(a) sketch, the width of the plaint C schedule way running between the plaint A schedule and plaint B schedule properties ranges between 5 feet and 12 ½ feet. At the portion where the way starts from the Kakkathanathu Harijan colony road, the width is 12 ½ feet. At the south western corner of the plaint B schedule property, the width of the way is 10 feet. It is there that the offending construction is to be found along the western boundary of the plaint B schedule property. The width of the plaint C schedule way at the offending construction ranges between 5 ½ feet and 7 ½ feet. It clearly shows that the offending construction causes a constriction to the plaint C Schedule pathway rendering free passage of vehicles, R.S.A. No. 937/2008 : 5: impossible. 5. The learned Munsiff, after trial, as per judgment and decree dated 17.03.2001 decreed the suit as prayed for. On appeal preferred by the defendant as A.S. No. 57 of 2001 before the District Court, Pathanamthitta, the lower appellate court as per judgment and decree dated 31.05.2007 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this Second Appeal. 6. The following questions of law have been formulated in the memorandum of Second Appeal:- i. Did not the courts below err in law in granting a decree of injunction in the absence of plea regarding the nature of right alleged to have been infringed by the defendants, particularly on the basis of evidence that C schedule is neither a public road nor a panchayath road? ii. Did not the Courts below err in appreciating the mandate of the law that a permanent injunction is granted only when there is a material injury to a clear legal right and damages must not be a sufficient compensation? iii. Aren't the court below correct in law in passing the decree relying on exhibit C1 ex parte commission report, which is vague, ambiguous, mutually contradictory and riddled with inherent improbabilities? iv. Did not the courts below err in law in granting a decree of mandatory injunction without any proof regarding the pre existing lie of the way before the alleged trespass? R.S.A. No. 937/2008 : 6: v. Did not the courts below err in entering into finding of facts without any legal evidence and decreeing the suit in favour of the plaintiffs? 7. The learned counsel appearing for the appellants made the following submissions before me:- The courts below erred in relying on Exts.C1 and C1 (a) ex parte commission report and plan. There was no survey commission taken out. Without knowing the exact former width of the plaint C schedule pathway at the disputed area, the courts below were not justified in granting the mandatory injunction prayed for by the plaintiffs. The plaintiffs did not make any particular claim over the plaint C schedule pathway. 8. I am afraid that I cannot agree with the above submissions. It is true that Exts.C1 report and C1(a) plan were ex parte report and plan. But then, the Advocate Commissioner who prepared Ext.C1 and C1(a) was examined as a witness. It is relevant to note that it was the appellants who examined the Commissioner as DW3. Therefore, they cannot assail the report and plan as ex parte report and plan. It is true that no survey R.S.A. No. 937/2008 : 7: commission was taken. But then, even the appellants have no case that they are in possession of properties comprised in specified survey numbers or that their boundaries are co-terminus with survey boundaries. Ext.C1(a) plan clearly shows that the offending construction of the boundary wall was after encroaching into the plaint C schedule way causing a constriction of the way along the western boundary of the plaint B schedule property. The offending construction has reduced the width of the plaint C schedule pathway. As for the existence of the plaint C schedule pathway and the user of the same both by the plaintiff and the defendants, it was a fact which was admitted in the written statement itself. The plaintiffs have no claim of easement over the said pathway because it is nobody's case that the plaint C schedule pathway is passing through the properties of the defendants. The plaint C schedule pathway is a pathway used by the public and no person having properties abutting the said pathway has any right to annex any portion of the pathway or construct any boundary wall in R.S.A. No. 937/2008 : 8: such a way as to reduce the width of the plaint C schedule pathway. The courts below were therefore justified in granting the mandatory as well as prohibitory injunction prayed for by the plaintiffs. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 1st day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 937/2008 : 9: