IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 RSA.No. 1271 of 2009(B) ----------------------------------- [AS.NO.149/2007 OF ADDL. DISTRICT COURT (SPECIAL), KOTTAYAM, OS.NO.101/2004 OF PRL.MUNSIFF'S COURT, KOTTAYAM] .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------------- MAMMEN P.THOMAS, AGED 57, CHERUKUNNEL HOUSE, MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS. RESPONDENTS/RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------------ 1. P.T.CHERIAN, AGED 70 YEARS, MADUKKANI PUTHENPURAYIL HOUSE, MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE, KOTTAYAM DISTRICT. 2. SARAMMA CHERIAN, W/O. P.T.CHERIAN, MADUKKANI PUTHENPURAYIL HOUSE, MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE, KOTTAYAM DISTRICT. R1 & R2 BY ADVS. SRI.JOHN NUMPELI (JUNIOR), SRI.P.V.PAULSON, SMT.K.M.MINIMOL. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------- R.S.A No.1271 of 2009 -------------------------- Dated this the 25th March, 2010 J U D G M E N T The court below had concurrently found that the claim putforth by the plaintiffs is justified and has granted a decree. The concurrent findings against the defendant in the suit are assailed in the R.S.A. 2. Plaint item-1 belongs to the 2nd plaintiff. First plaintiff is looking after the property on behalf of the 2nd plaintiff. According to the plaintiffs, Sri.P.C.Cherian, who is the father's brother of plaintiffs and defendant have properties on the northern side of the plaint scheduled property. There exists a road in between the properties of Sri.P.C Cherian and defendant. It is stated that this road starts from K.K.Road and has a length of 18 mtrs and 4 mtrs width, which is shown as plaint item 2. According to the plaintiffs road was in existence since the partition of the properties between the plaintiff s and the defendant. They rely on an agreement executed between Sri.P.C Cherian and defendant with respect to use of this road. In R.S.A No.1271 of 2009 2 that agreement plaintiffs and their successors have given the right to use the said road. Plaintiffs complained that defendant is trying to block the said road by putting up a gate on the northern side. According to the plaintiffs, they have every right to use the way. To restrain the defendant from making any obstructions in the road, the suit was filed seeking a permanent prohibitory injunction. 3. The defendant seems to have resisted the suit. It is pointed out by him that plaintiffs have also property on the northern side of the plaint schedule property. The plaintiffs have access to their property directly from the public road. They dispute the very existence of plaint item 2 -way and say that even assuming there is a way plaintiffs had no right to use the same. Agreement relied on by the plaintiffs was only for the purpose of producing before the local authority and does not confer any right on the plaintiffs. It is asserted that there is no road at all. 4. The trial court raised the issues for trial. First plaintiff and two witnesses were examined as PWs 1 to 3 and Exts.A1 and A2 were marked on the side of the R.S.A No.1271 of 2009 3 plaintiffs. Defendant and one witness were examined as DW1 and DW2. The commission report and sketch were marked as Exts.C1, C1(a) and C1 (b). 5. The trial court on an interpretation of Ext.A1 produced in the case came to the conclusion that a way shown as item 2 does exist and the plaintiffs have right to use the same. The trial court found that even though plaintiffs are not parties to the said agreement, the agreement confers right on them also to use the way. Of course the lower court has observed that plaintiffs have no other way. The commission report also indicated that the existence of the way as claimed by the plaintiffs. Overruling the defendant objections, the trial court has come to conclusion that the plaintiffs are entitled to a decree. 6. Defendants carried the matter in appeal. The appellate court concurred with the trial court on facts and held that the plaintiffs have right to use way. 7. Learned counsel appearing for the appellant/defendant pointed out that the trial court R.S.A No.1271 of 2009 4 proceeded on the basis that plaintiffs have no other means of access to their property but that is untrue. The appellate court has gone on the basis that their easement by grant which is also not correct. There was no pleading to the effect that plaintiffs claimed right over the way as right of easement by grant and finding of the appellate court to that effect took defendant by surprise and they had no opportunity to meet such a case. It is pointed out that Ext.A1 document enables them to put up a gate. The courts below therefore not justified in granting a mandatory relief to remove the gate. 8. Though arguments look very attractive, on a close scrutiny it can be seen to be without any merit and substance. Plaintiffs have filed the suit on the basis of Ext.A1 agreement by which they are entitled to use the way. Even if there is another way for the plaintiffs that does not prevent them from enforcing the terms of Ext.A1. The stand of the defendant is that there was no such way in between two buildings. R.S.A No.1271 of 2009 5 9. May be the the trial court handled the claim of plaintiffs as not of an easement of necessity. There is no such pleading to the effect in the plaint. The plaintiffs are seeking to enforce the item-A. T. The stand by virtue of the covenant in Ext. A1, they are entitled to use item 2 -way as of right . Defendant entered into the agreement conferring right to plaintiffs and was aware of the consequences. The appellate court has observed that the plaintiffs are entitled to use the pathway by way of easement by grant. Plaintiffs never claimed such right. The mere fact that the appellant court has given nomenclature to the nature of the right claimed by the plaintiffs does not mean,they cannot rely on the terms of Ext.A1. 10. Learned counsel appearing for the appellant placed before me a decision of the Division Bench in Ibrahimkutty Vs. Rahumankunju [1992 (2) KLT 75] . That was a case in which the pleading was to the effect that plaintiffs claimed a right of way by easement. No specific plea regarding the nature of claim was raised. So the R.S.A No.1271 of 2009 6 defendant was not able to meet the case effectively. In was in that context this court held that pleadings should definite and precise. 11. It is not possible to understand how the principles laid down in the above case can have any application to the facts of the present case. As already noticed, it is not by way of easement, that the claim is put forward by the plaintiffs but on the basis of Ext.A1 agreement. Therefore, none of the contentions now taken can hold good in the light of specific terms in Ext.A1 agreement. 12. One may refer to the Commissioner's report also. From the judgment of the court below, it is seen that commissioner has located item 2 way and its use by plaintiff. It would appear the report suggests that item 2 is the only means of a case of plaintiff property. 13. The contention that the mandatory injunction ought not to have been issued also is without any substance. The court below has found that the appellant herein had constructed a compound wall encroaching into R.S.A No.1271 of 2009 7 the pathway reducing it width and has put up a gate blocking the passage. The plaintiffs are entitled to use the way as per Ext.A1 agreement. The length and width of the way is stated in Ext.A1. Plaintiffs are entitled to use the way. The court below found that the width of the way was considerably reduced by the construction put by the defendant. He had no right to do so. So granting of decree of mandatory injunction is also proper. While exercising the power under Section 100, C.P.C, scope and interference by this court is considerably limited. No question of law let alone substantial question of law arise for consideration in this case. The appeal is without merits and is accordingly dismissed in limine. P.BHAVADASAN, JUDGE ma R.S.A No.1271 of 2009 8 R.S.A No.1271 of 2009 9 R.S.A No.1271 of 2009 10 R.S.A No.1271 of 2009 11 R.S.A No.1271 of 2009 12 R.S.A No.1271 of 2009 13 R.S.A No.1271 of 2009 14 R.S.A No.1271 of 2009 15 R.S.A No.1271 of 2009 16 P.BHAVADASAN, JUDGE ma R.S.A No.1271 of 2009 17 R.S.A No.1271 of 2009 18