IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 SA.No. 98 of 2000(C) ------------------------- AS.47/1995 of SUB COURT, VADAKARA OS.88/1993 of MUNSIFF COURT, VADAKARA .................... APPELLANT(S): RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. EARTH DAMU, S/O.KANNAN, AGED 50 YEARS, RESIDING AT KAIPALLY THAZHAKUNIYIL HOUSE, PUTHUPPANAM AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. WIFE THOOLICHINTAVIDA SANTHA, D/O.KANNAN, AGED 43 YEARS, KAIPALLY THAZHAKUNIYIL HOUSE, PUTHUPPANAM AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.C.VATHSALAN RESPONDENT(S): APPELLANT/PLAINTIFF ------------------------------------------------- MALAYAMPATHU JANU, D/O. CHOYI, AGED 53 YEARS, RESIDING AT KAIPALLY THAZHAKUNIYIL HOUSE, PUTHUPPANAM AMSOM DESOM, (P.O.)PUTHUPPANAM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI. C.R.SIVAKUMAR SRI. P.SAMSUDEEN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON I.A. NO.1522/2002 & I.A. NO.235/2000 IN S.A. NO.98/2000 DISMISSED 23/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ------------------------------------- SA No.98 of 2000-C ------------------------------------- Dated this the 23rd day of June 2011 Judgment The defendants in OS No.88/93 before the Munsiff's Court,Vadakara, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, the defendants own property on the western side of her property. She obtained the property under Ext.A1 jenm assignment deed dated 03.07.1980. The property on the northern side belongs to one Kavamma and further north is a public road. According to the plaintiff, she had put up a boundary fencing on the western side, which she would allege, was dismantled by the defendants. Apprehending that they would cut open a way through her property, the suit was laid. SA 98/00 2 3. The defendants resisted the suit. According to them, there is a public road, separating the plaintiff's property from the property on the northern side and that fact has been suppressed by the plaintiff. The plaint allegations are without any basis and have been made only for the purpose of the suit. They also disputed the sketch produced along with the commissioner's plan. Pointing out that the plaintiff has no cause of action, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants and DWs 1 and 2 examined and Exts.B1 and B1(a). 5. The trial court, by a strange reasoning, dismissed the suit. The disappointed plaintiff carried the matter in appeal as AS No.47/95 before the Sub Court, Vadakara. The lower appellate court, on an evaluation of the evidence, found that the defendants have miserably SA 98/00 3 failed to establish their case that there was a public way as alleged and that the apprehension voiced by the plaintiff is genuine. The lower appellate court found that it was unable to support the finding entered by the trial court. Accordingly, the judgment and decree of the trial court was reversed and a decree was granted in favour of the plaintiff. Hence the second appeal. 6. Notice is seen raised on the following questions of law formulated in the second appeal : 1.Whether the lower appellate court is justified in decreeing the suit for injunction without even a plan and report especially when the dispute relates to a public pathway. 2.In a suit for injunction, the burden is upon the plaintiff to prove the case put forward for getting a decree. That being so, is the lower appellate court justified in decreeing the suit without any evidence and on the face of a totally irrelevant reason as to Exhibit B1 and B1(a). 7. The learned counsel for the appellants pointed out that the lower appellate court was not justified SA 98/00 4 in decreeing the suit in favour of the plaintiff especially when it is shown that there has been trespass by the defendants. Even assuming that there was trespass as alleged by the plaintiff, the remedy available to her was to sue for recovery of possession and not for injunction. It is further pointed out that even going by the evidence of PW1, it can be seen that there is a way as claimed by the defendants and that has been omitted to be noticed by the lower appellate court. There is total mis-appreciation of the facts and that has resulted in miscarriage of justice. 8. The learned counsel for the respondent, on the other hand, reiterated that there is a way along the southern boundary of the plaintiff's property. Attention was drawn to the fact that the claim of the defendants was that there was public way separating the property of Kavamma and the plaintiff and therefore, it was for them to establish the said fact. Relying on Ext.B1 document, it was pointed out that it is clear that no way as contended by the defendants exists. The learned counsel went on to point SA 98/00 5 out that the lower appellate court has reached the right conclusions and is justified in granting a decree in her favour. 9. This court is constrained to observe that the judgment and decree of the trial court is perverse and that the reasons given to dismiss the suit are unsustainable. The plaintiff owns property on the eastern side of the defendants' property. According to the plaintiff, a way starts from the public road on the northern side and runs towards the southern side, running along the eastern boundary of Kavamma's property and the plaintiff's property and after reaching the south-eastern corner of the plaintiff's property, it takes a turn towards west and runs along the southern side of the plaintiff's property. The plaintiff had put up a fence on the western boundary of her property, which was dismantled by the defendants. She apprehended that the defendants may obstruct her using the pathway and trespass into her property. That made her file the suit. SA 98/00 6 10. According to the defendants, there is a public way running in between the property of Kavamma and the plaintiff and that has been conceded. If, as a matter of fact, the defendants had a case that there is a public road, it was for them to establish the said fact. PW2 has stated that there is a way, but, that can only be a bona fide mistake since it is very evident from the reading of evidence as a whole that she has stated categorically that the way available to the plaintiff is the way which runs through the southern boundary of the plaintiff's as well as the defendants' property. One must remember that the claim of the defendants is that there is a public way separating the property of Kavamma and the plaintiff, giving access to the defendants to their property. Moreover, the claim of the defendants that the plaintiff had direct access to her property through the northern side, is belied by Ext.B1 document. It was the above factors, which persuaded the lower appellate court to come to a conclusion that the apprehension expressed by the plaintiff SA 98/00 7 was true and genuine. The findings arrived at by the lower appellate court are based on evidence on record and are pure questions of fact. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA 98/00 8